Did you know that, as of the year 2015, over one million children have been born in the United States through in vitro fertilization? This is an exciting opportunity for previously childless adults, but it does provide an interesting challenge to all estate planning. In fact, litigation has arisen now concerning this issue. 

Where does the issue stem from? First, it surrounds the failure of a prospective parent to create a last will and testament at all. Second, it focuses on the failure of a prospective parent to create a last will and testament that provides for this child, but who then dies with an estate in place before the birth of this child. We know this can be a challenging issue to think through and we encourage you, on this issue and at all times, not to wait to meet with your estate planning attorney.

In many ways, these reported problems are no different than the issues that confront the courts when a prospective parent of a naturally born child dies without a last will and testament before the birth of the child. In other ways it is different when Assisted Reproductive Technology (ART) is used by the family. ART means procreative procedures which involve the laboratory handling of human eggs or pre embryos, including, but not limited to, in vitro fertilization. In this instance, a commissioning couple means the intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of the intended parents. 

States are beginning to see an increased need to regulate this area. For example, the Florida statutes provide that a commissioning couple and the treating physician shall enter into a written agreement that provides for the disposition of the commissioning couple’s eggs, sperm, and pre-embryos in the event of a divorce, the death of a spouse, or any other unforeseen circumstance. The statutes, however, also provide that absent a written agreement, any remaining eggs or sperm shall remain under the control of the party that provides the eggs or sperm. The statute further provides that absent a written agreement, the decision-making authority regarding the disposition of pre embryos resides jointly with the commissioning couple. In the case of the death of one member of the commissioning couple, any eggs, sperm, or pre embryos remain under the control of the surviving member of the commissioning couple. 

You may be asking, what happens next? We agree. This is just one of the ways you need to work with your loved ones and your estate planning attorney to ensure your wishes are clear. An estate plan is extremely important in these cases because many statutes now, such as in Florida, provide that a child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or pre embryos to a woman’s body shall not be eligible for a claim against the decedent’s estate unless the child has been provided for in the decedent’s will. 

We know this blog may raise more questions than it answers. We encourage you not to wait to schedule a meeting with your estate planning attorney to discuss your concerns about not only your future, but the future of your potentially unborn children. You are welcome to contact us at any time.