Estate Planning

ART and Estate Planning

The children of parents who conceive through ART 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 postmortem 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. So, for instance, if a man and a 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 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" or "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 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 used much in the creation of embryos. However, technology is advancing to the point where eggs can be cryopreserved and used later, without being fertilized first.