J. Kelly Kennedy, Attorney/CPA, PLLC

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Artificial reproductive technology's challenge to estate planning

Many Florida couples have conceived children with the help of artificial insemination or other technological means, and this technology is getting more advanced every day. It's now relatively common for people to store their reproductive material for use later. For example, men in the military may want to store sperm before they head off on a dangerous mission, or medical patients may want to store their eggs before they begin treatment that may leave them infertile. This kind of technology can be a wonderful thing for many families, but it also raises some perplexing issues for the laws of inheritance and estate planning.

For example, if a man has his sperm frozen and then dies unexpectedly, his partner may wish to use that reproductive material to conceive a child. However, unless the man has signed paperwork to show that he consents to her doing this, it may not be clear that the partner has the right to use the material. And if the partner does conceive a child with the material, it's not always clear if the child should be considered an heir of the deceased man. It may be that the deceased person had a plan to provide for children and grandchildren he or she already knew, but did not have anything planned for children who did not yet exist.

When a person dies with a valid will, the will disposes of the person's assets after death. If the person doesn't have a valid will, Florida law spells out a plan as to how the assets should be distributed, with priority given to a spouse and children. The law has long known how to deal with cases in which a child was born after its biological father's death, but the law is still trying to figure out what to do with cases where the child wasn't even conceived until after the father's death.

It's a good idea for those who are considering freezing their reproductive material to also consider what this means for their estate plan. They should consider putting provisions into their will that establish the extent of their consent for using the material, and how long after their death they want that consent to last.

Assisted reproduction can be a great help to families who have trouble conceiving through the traditional method, but the law hasn't quite kept up with all the developments in technology. Those who are using this technology should formulate an estate plan that considers all possibilities.

Source: Forbes, "10 More Estate Planning Questions That Might Make You Squirm," Deborah L. Jacobs, June 6, 2013