In case of kids: estate implications of posthumously conceived children.

• Author: Morris, Daniel D.
• Position: Estate planning

Procreation is both a biological necessity and an emotional desire. Without children, our species ends and both nature and nurture are included in our survival instincts. Science advances significantly faster then society's ability to adapt. Laws and policies frequently lag behind our modern capabilities and childrearing is not exempt from this reality.

The estate implications of IVF and similar medical procedures include the disposition and use of genetic materials post-mortem. What are the associated property rights of the deceased as it relates to his or her genetic materials? What is the status of children conceived post-mortem? Should children born from the same genetic materials be treated differently because conception and birth was post-mortem rather than pre-mortem?

Courts, legislatures, heirs, widows, widowers and estates are facing these and similar questions. These are difficult questions to contemplate and even more difficult to answer. Our hodgepodge of state-based regulations leads to a cobbling of general procedures and case law as it relates to the deceased and beneficiaries.

As with any new area, different cases lead to different results, and when it comes to assisting our clients with their wealth preservation techniques, surprises create financial and psychological risks. Courts have rendered different conclusions based upon their jurisdiction and the associated and applicable state law. There are at least two sponsored model agreements that have been proposed with limited adoption.

Documenting the desires of the deceased, in advance, with forethought and thoughtful deliberations facilitates the post-mortem residual determinations. I have summarized three distinct cases that highlight this complexity; estate advisers should consider these when discussing reproductive materials with their clients.

Case 1: William Kane, Los Angeles

William Kane [Hecht v. Superior Court (Kane) (1993) 16 Cal. App. 4th 836] was a 48-year-old divorced man living with his 38-year-old girlfriend. Kane had two adult children from a previous marriage. During the fall of 1991, Kane deposits 15 vials of sperm into a cryogenic sperm bank. He specifically instructs the sperm bank that his deposits are for the benefit of his girlfriend and were to be released only to her or her physician for the purpose of conception. Kane concurrently updates his will, leaving limited property to his adult children (from a previous marriage) and the residual of the...