It may have never occurred to you before, but yes, your reproductive cells need a will. You never know what could happen within the next second of your life. One minute you could be talking to your partner about getting married and having children, and the next, you could be at their bedside saying goodbye.
Background Information
ART, assisted reproductive technology, has become increasingly more couple in recent years as infertility now affects over 20% of couples in America. Often, when deciding on how to plan for their future, partners do not take their eggs, sperm, and embryos into their estate planning consideration.
The Estate Planning Process
Part of your estate planning process should include adding definitions that clearly state your idea of a descendant, child, grandchild, etc. It is highly advisable to have an updated will, trust, Property Power of Attorney and Health Care Power of Attorney with your own definitions of these terms if you are thinking about utilizing any form of assisted reproduction. Changing the default definitions is the only way to ensure that your potential children will be protected according to your wishes. If this step is not taken in your estate plan, the law has a set of instructions for how to carry out the situation. For instance, if you do not redefine “child,” you could be disinheriting them. The same goes for grandchildren and in general, any child that was adopted or conceived via surrogate or egg and sperm donation. For extra security, you may also want to update all familial terms such as nieces and nephews and those in your extended family.
It is of the utmost importance to correctly redefine your heirs in all estate planning documents you have in order to prevent issues should one or both partners pass away.
The Role of Your Power of Attorney
Your Power of Attorney will be used to determine what will happen to your genetic material should you become incapacitated or die. This explicit document should explain your wishes if anything unfortunate were to happen. For instance, it answers the question of whether or not you allow your surviving partner to discard of your genetic material or if you still allow them to use it to conceive. A posthumous child is one that is conceived with your genetic material after your death and if this is something you will allow your partner to do, this should be clearly stated. If you allow your partner to conceive after your death, you will have to clarify in your wills and trusts if this is your child, for inheritance purposes. Furthermore, your POA should have the ability to handle the financial aspect of any ART procedure, as well as “to consent to the retrieval of gametes and any subsequent use of such gametes,” in the event that you become incapacitated and want them harvested. Additionally, in these documents, you should have guardians stated for any children that are a result of ART processes.
Genetic Material Disposal Options
Besides destroying your genetic material, there are other options you must consider. For example, you could have it saved or even donated. With that in place, you must also make note of how long you wish the genetic material to be stored and who will pay for it.
Take Estate Planning Measures Sooner Rather Than Later
A story from April 2017 is one to learn from. Kate Creswell and Tom Alexander, a Colorado couple, thought all was well in their lives until Alexander suddenly fell ill and was hospitalized for heart complications after a hike. They had been together for seven years and planned for a future of creating a family. He later died in the hospital unexpectedly. Kate then requested to have his sperm extracted with the support of his family. Unfortunately, without a will or a medical directive, it was extremely difficult to find a urologist to perform the extraction. There was also a time limit in place for how long the sperm would stay viable. After facing too many obstacles, Kate gave up.
The main problem that prevented the doctors from helping Kate was the lack of consent, which has occurred before to other couples. Another woman and her dead fiancé’s family was able to win over a court proving that retrieving sperm or eggs can be considered organ donation. Though the court ruled in her favor, this was over 10 years ago, and no other court has ruled this way since.
It was too late for Kate, but it does not have to be for you. It is important to note that while laws and procedures surrounding the conception of posthumous children vary by state, in New York, the surviving spouse has the right to use stored genetic material if evidence is presented that clearly shows the deceased spouse would have consented.
The Importance of a Will
Wills are there for your convenience and to make life easier for you. A will is needed by everyone, especially if you are leaving loved ones behind. Do not be afraid to have that talk with your partner. If you plan on having kids in the future make sure to address these terms within your will. It all depends on your needs and future plans. Having a professional present to aid you will also make the estate planning process a breeze.
If you have any further questions concerning wills and estate planning, don’t delay to discuss your estate planning needs. Please contact an experienced estate planning attorney at the Law Office of Inna Fershteyn by calling (718) 333-2394 or visiting our website to schedule a consultation.