J. Kelly Kennedy, Attorney/CPA, PLLC

Local: 863-877-4723
Toll-Free: 888-415-5019

Attorney and CPA

Fertility treatments create legal complications for inheritance

Fertility treatments are becoming increasingly common in Florida and the rest of the nation, as couples are deciding to have children later in life. According to some accounts, the number of children conceived by in vitro fertilization doubled over the past decade. This technology can be a wonderful thing for many families who otherwise might never have children. It even makes it possible for a person to conceive a child after death. And that presents some perplexing issues when it comes to inheritance.

Fertility treatments typically involve freezing a man's sperm or a woman's eggs for fertilization in a laboratory. Typically, couples choose to do this when they are having trouble conceiving naturally, but it's becoming increasingly common for people to save their reproductive material for later use. For example, a man might choose to have his sperm frozen before he undergoes chemotherapy or a surgery that could cause sterility. This allows the man to become a father when he is ready. Of course, it also allows his partner to conceive with him after he passes away.

Florida and all other states have laws that spell out how to distribute a person's assets after death if the person did not leave behind a will. Known as the laws of intestacy, or the laws of intestate succession, these laws always provide that some of the deceased's assets will go to that person's children. This has always been true when fathers die before their children are born, but fertility technology now means that it can apply to a father's children conceived after he died. The same could be true in the case of a woman who freezes her eggs if they were later implanted in another woman's uterus.

There haven't been many lawsuits that have tested this area of inheritance law, but those that have come up have been extremely complicated. Courts must balance the surviving parent's right to reproduce, the rights of the deceased to have a say in reproduction of his or her genetic material, the rights of the other heirs to not have their inheritance diluted and the rights of the new children.

Florida residents who have saved some of their genetic material should make sure their estate plan spells out their intentions for the material and for any children conceived with it. Technology can put off reproduction, but it can't put off the need for an estate plan forever.

Source: New York Times, "Fertility Treatments Produce Heirs Their Parents Never Knew," Paul Sullivan, Aug. 30, 2013