Hi, my name is Jordan Flake. I’m estate planning attorney for Clear Counsel Law Group. Today I’m going to cover a, I guess it’s a little strange, but emerging area of the law, which is what happens if the client has eggs or sperm that are frozen and that result in a, what we would call a posthumous conception.
In other words, they have a child after they’re dead. In Nevada at least, the law necessarily treats that individual as though it were a child born during the life of the deceased individual. If there’s no will expressing anything otherwise that later born child will actually receive a share of their parents’ inheritance in that case.
If you fall into this category it is a situation that requires a very, very state specific detail, fact-intensive analysis in order to make sure that you get the right solution.
An Example of Poor Estate Planning with Genetic Material
Let’s just sit back and imagine all the fun problems that we could have here. Let’s just think about I don’t know, Bill Gates or some other computer magnate who have two or three kids and then they have also some of their sperm frozen.
They have their children and they pass away and they give everything to their kids. Three years later somebody has stolen this frozen genetic material, takes it to Nevada and, boom, they posthumously create a baby for The Gates or this computer magnate that we’re thinking about.
Then they go to the court and they say, “Hey look, you have a baby and this was supposed to be included in the estate. How dare you distribute it just to the two or three existing kids.” You can see how this could go, be really a very bizarre situation.
A lot of things happened in that story that shouldn’t have, which is the basically misuse of the genetic material happening after the fact without the knowledge of the people who are the donors in this situation.
That’s just one of many different scenarios. I’m just trying to illustrate some of the problems with this that could happen if there’s not clarity on how to deal with these situations.
Use of an Agent, Genetic Material, and Estate Planning
It’s important that we develop clarity because more and more this is becoming a reality for fertility treatments.
There’s a lot of different reasons why people are having their genetic material frozen and possibly used at a later time. In order to protect and to provide some clarity, some states have adopted some procedures and regulations.
One of those would be that the donors would need to specify who can ever access and use this genetic material. These would be called the actual agents. Then the agents are intended to provide notice.
Let’s say that I decide hey, I’m going to have some genetic material out there and I want it to be used to have a child even if I’ve passed away. I would need, in certain states, to appoint an agent who’s going to be able to either push the green light on that situation or push the red light on that situation.
That agent then, even if I pass away, they’re the ones in charge of making sure whether this genetic material is ever going to become a human child.
If they do, first of all that needs to happen. There needs to be an agent appointed.
Second of all, if they do decide to have a baby with this material, then they would need to send a notification to the personal representative of my estate saying, “Hey, just so you know, you think there’s only two or three kids. Aha. There’s actually going to be another one coming to this situation. Here’s official certified letter providing notice that there’s going to be another baby.”
Here’s the kicker though, in the states that have adopted actual statutes it has to be within two years of a judicial determination of death or issuance of a death certificate. Usually there’s not going to be a huge difference between those two things, in most scenarios.
Discuss Your Plan with Me Just to Make Sure
If we just had a totally unregulated situation where there’s just frozen genetic material crossing state lines, changing hands between different people and providers and carriers, people just randomly creating into life children of people who are deceased fifteen years ago, we’d have a real mess on our hands.
These states that have adopted statutes that basically said listen, there needs to be an agent. There needs to be notification of the personal representative and let’s be reasonable, it all has to be done within two years.
In any event, like I said at the beginning, if this is something that you’re considering and you want to make sure and know that you’re not going to be causing any problems in the event of your passing with the genetic material that you may have left behind, come in and meet with us so that we can do the fact-intensive analysis to make sure that exactly what you want to have happens is what ends up happening.
Thank you so much.