Artwork is a unique asset in an estate plan. Paintings, sculptures and literary works can present challenging problems when included in a person’s estate plan. But this post is about another kind of ART – Assisted Reproductive Technology – and it can present even greater challenges.
Assisted Reproductive Technology (ART) is a growing practice area, and clients are finding that their estate plans might need to address issues not considered before. Traditional estate planning deals with assets that can be easily be quantified or valued. We can readily check the balances in our 401(k)s, brokerage accounts, and can reasonably estimate the value of real estate. Traditional estate planning also deals, for the most part, with heirs our clients know and have met. ART creates the very real possibility for heirs to exist at some later time that a testator or trustor may have never considered. Frozen embryos and frozen sperm could result in posthumously conceived children; children who might be legally entitled to share in the donor’s estate.
What this means for estate planners and our clients is another layer of questioning to determine whether such ‘assets’ exist and perhaps more importantly, how our clients want to treat them. For instance, if a couple with children of their own donated leftover embryos after their own successful in vitro fertilization, most people would probably agree that a child born to another couple from those donated embryos should not be considered an heir or descendant of the donating couple. Conversely, if the surviving spouse of terminal patient whose sperm was frozen was to then give birth to a child, most people would also probably agree that the child should be considered an heir or descendant of the father’s lineage (a New York case ruled in exactly this way in a case involving the posthumously conceived grandchildren of a very large estate).
Estate planning, by its very nature, is intended to be a plan for the future. As estate planners, it is important to ask the right questions to determine the client’s needs. ART is another area where we need to focus.