“Death is no longer a deterrent to having children,” Sharon Klein, managing director of family office services and wealth strategies at Wilmington Trust, quipped during a panel discussion in New York City last week.
Klein was referring to reproductive technologies such as in vitro fertilization and those allowing for the storage and even posthumous extraction of genetic material, which enable conception and birth to happen long after the death of one or even both parents.
The possibility of posthumous births has added a new wrinkle to the estate planning conversations advisors have with clients, not to mention estate-planning law, Klein stressed.
“More and more, it’s likely you have to raise [the reproductive issue] in some manner just so people are equipped to deal with it,” she said.
Clients writing trust documents may need to consider that future generations of their family might use these technologies to extend a family bloodline. Estate plans should be modified to specify how the client wants inheritances handled if such a thing were to happen.
Without such planning, Klein added, estates and inheritances will be subject to state laws, many of which are still grappling with the issue of how to handle posthumous births.
“The beauty of doing it in your own document is that you can do whatever you want,” Klein said in a telephone interview.
Most people would want posthumously conceived children to inherit, but with constraints on the time limit or the consent necessary, Klein said, but statutes dealing with such situations differ from state to state.
“States are trying to weigh interests of giving rights to posthumously conceived children on the one hand, but on the other hand, trying to give existing beneficiaries finality and certainty so they can know what they’re inheriting and the distribution is not held up,” she said.
In cases where the estate of the deceased is silent on the issue, some state statutes give a timeframe ranging from a year to as long as 45 months between the parent’s death and the birth for a child to retain inheritance rights. Legislation wending its way through the New York State legislature, for example, proposes that for a child born after the death of a genetic parent to be considered the offspring of that parent for inheritance purposes, it must be in utero within 24 months or born within 33 months.
Some states have no explicit time limits. But a common theme in most state legislation is the requirement of specific consent to posthumous reproduction, she said. This means that a child conceived with deposited genetic material would not have inheritance rights unless there was specific consent to the posthumous reproduction.
New York’s proposal would require the person depositing the genetic material to give specific consent to have a posthumously conceived child. In addition, the person storing the material would have to authorize a person to make decisions about the use of the genetic material after the parent’s death.
“State time limit and consent rules would typically come into play as default rules, if a document is silent in a state that has legislation on the topic,” Klein said.
Klein said she was aware of only one case in which a decision was made on the ability of a posthumously born child to become a beneficiary of a trust. The Matter of Martin B., decided in the Surrogate’s Court of New York in 2007, centered on a grandfather who had created a trust in the 1960s. His son, who developed cancer, stored his genetic material, which his wife used to produce two children after his death. The question before the surrogate was whether the children born after the man’s death were beneficiaries of their grandfather’s trust.
Because the technologies enabling posthumous birth had yet to emerge when the grandfather created the trust, the documents were silent on the issue. The surrogate had to examine the trust document’s parameters to surmise the grandfather’s intent and whether he would have included the posthumously born children as beneficiaries. She found that the children born of the new technologies should be entitled to inherit in the same way as the naturally born children.
Klein noted that the surrogate, in her decision, called for comprehensive legislation to address the issues raised by reproductive technologies because she saw the difficulties in speculating on a benefactor’s intent.
Posthumous births, Klein said, can be a difficult topic for an advisor to raise with clients in an estate planning conference.
“People tend to procrastinate when it comes to their estate planning, anyway, and if you throw a thorny issue at them, it could derail everything,” Klein said.
The advisor has to tread carefully, feeling his or her way with a particular client.
“You can describe it in a way that’s easy to understand, that people could be born now after the death of someone who has stored genetic material, and ask whether they would like you to put some parameters on that,” she said.
