ART and Estate Planning
Parents are having children through ART, and the
children may or may not be genetically related to
both parents. People can cryopreserve sperm,
eggs* and embryos for later use in creating a child.
Couples and singles sometimes use surrogacy to
achieve parenthood. Children can be conceived
after a parent's death.
Estate planning documents should take these
developments into consideration. Wills and
trusts should anticipate and address:
- Whether the person making the will wishes for any cryopreserved material to be
destroyed, used by a spouse, partner, or parent, or be donated.
- Whether the person wants to be considered the legal parent of a post-mortem
child.
- Whether a person making a will wishes his or her heirs to include children who
came into being via ART.
In the absence of a will or other donative
document, under new Colorado law, ART children are
the children of the people who intended to create
them. For instance, if a man and woman agree to have
a child together using donor sperm, and the man
intends to be the parent of the child; if he dies
leaving no other will, that child will be his heir
even though he is not the genetic father.
Also under Colorado law, a person is included in
a class of persons named in estate planning
documents (like "children," "grandchildren" or
"descendants") even if they are ART children.
Thus, if a person creates a dynasty trust for her
"descendants," unless otherwise stated, that group
includes ART children even though they are not
genetic descendants of the grantor.
If you have cryopreserved material, and a child
that may result from that material would be an heir
of an estate, the personal representative or trustee
of that estate should be contacted.
*The cryopreservation of eggs is still not
widespread nor much used for creating embryos.
However, technology is advancing to the point where
eggs can be cryopreserved and used later, without
being fertilized first.
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