From Test Tube to Testate

In determining who is included among the testator's issue, the intent of the testator controls. It has become standard to include clauses dealing with adopted children and even children born out of wedlock in today's wills and trusts. This is not the case regarding children born as a result of egg or sperm donors or with the help of surrogates. If the drafting attorney does not discuss how the client feels about including or excluding descendants born via various forms of assisted reproductive technology and to consider the possibility that their future descendants may be either the donors or the recipients of genetic material, then the client's intent cannot possibly be set forth in his or her estate-planning documents. If the testator's intent cannot be ascertained, then local statutes and case law will govern. As demonstrated below, the current state of the law is undeveloped at best and should not be relied upon to effectuate a testator's intentions.

The Problem: Old (or No) Laws v. New Technology

The determination of whether an individual is included in a class gift to issue turns on the identity of the individual's parents. This determination has become increasingly complicated as more and more children are born through assisted reproductive technologies. When a child is born to a surrogate mother, one or both or none of the intended parents could be the genetic parents of the child. Many states do not recognize such children as the offspring of the intended parents until there is a formal, legal determination of the relationship, either through adoption or the establishment of paternity or maternity. The consent of the surrogate mother's husband, if she is married, is also often required in such a proceeding. When leaving property to children (and perhaps future children) born via surrogacy, it is important to define carefully the terms 'children' and/or 'issue' in the donor's estate planning documents, especially in light of the possibility of a death before the legal determination of parentage is established. It is equally important to exclude unintended beneficiaries from the estate plan of the surrogate and her family, and again, unless the definition of issue is drafted with care, the surrogate's own family's inheritance could be shared with the child that she carried for others.

As with surrogacy, very little law exists regarding establishing the parentage of children conceived from egg and/or sperm donors. Applying the principles from the surrogacy cases, a legal determination of parentage, such as the adoption of these children, would be necessary for them to be deemed the issue of their intended parents. The same drafting concerns apply here as well and the estate-planning attorney should take special care in defining issue.

While the facts surrounding some of the cases dealing with surrogacy or egg/sperm donation are exceedingly complex, the estate-planning analysis is actually not much different from the cases involving adopted or illegitimate children. In all of these cases, the parties responsible for the child's conception are all alive at the time of conception. What happens, however, when such responsible parties are not alive at the time of conception? With recent scientific advances in the ability to preserve genetic material, conception is now possible after the death of one or more of the child's parents. There is almost no precedent for establishing the parentage of such children. Further, with the continued war in Iraq, what recently sounded like a science fiction novel has become a reality. Approximately 100 soldiers per year deposit sperm in various sperm banks before heading off to war. (Gregg Zoroya, Science Makes Fallen Soldier a Father, USA Today, Feb. 11, 2007 at www.usatoday.com/ news/nation/2007-02-11-soldier-child-cover_x.htm.) They may do so to permit their wives to continue with IVF treatments while they are away, or out of a concern that the soldier will lose fertility because of combat wounds or exposure to toxic chemicals. Others do so out of the simple fear of death. While it is unclear exactly how many children have been conceived after their fathers' deaths in Iraq, the Department of Veterans Affairs reports at least three conceptions as of last February.

Current Law

Under current law, it is simply unclear whether children conceived after the death of a parent would inherit from such parent's estate. The legal landscape is quite diverse and there is no current consensus. The most recent relevant case
in Massachusetts, Woodward v. Commissioner, 760 N.E. 2d 257 (2002), was decided by the state's highest court and it held that a child conceived posthumously could inherit from the deceased parent if: 1) a genetic relationship between the child and the parent could be shown; and 2) the decedent consented to both the conception and the support of that child. In the Woodward case, the children were born two years after the parent's death. While the court acknowledged the need for the timely administration of estates, it did not set that time limit, and directed the legislature to decide how long after the parent's death a child could be recognized. On the other side of the country, in Arizona, in a case with facts similar to Woodward, a district court decided that children born after the death of their father were not his issue. Gillett-Netting v. Barnhart, 371 F.3d 593 (9^th Cir. (Ariz.) June 9, 2004).

While neither the Massachusetts nor Arizona legislatures have responded to these decisions, other legislatures have. Most notably, California passed a statute providing that a child conceived after the death of the parent will be considered the parent's issue if the following three conditions are met: 1) the decedent consented, in writing, to the use of his genetic material; 2) the person using the genetic material notified the decedent's executor or trustee as to the use of the genetic material; and 3) the child is in utero within two years of the decedent's death. California Probate Code ' 249.5. The California statute applies to spouses, domestic partners and any other person designated by the decedent to use the genetic material for posthumous conception. The two-year conception limitation was believed to strike a balance between allowing for a sufficient mourning period and the timely administration of an estate. A compromise similar to the California statute has been presented to the Uniform Probate Code that would allow for a three-year statute of limitations on actions for determining the status of a posthumously conceived child for inheritance purposes, provided that there is notice of the stored genetic material and written consent to conception provided by the decedent. Some states shorten this claim period, for example, to a birth within ten months of the decedent's death. Va. Code Ann ' 20-158 (Michie 1995).

Other states, such as Delaware and North Dakota, do not require that the claim be brought within a certain period of time and instead require other proof of the decedent's intentions such as a separate document setting forth his approval of the use of his sperm after his death. Del. Code Ann., Title 13, Ch. 8, ' 8-707 (2003); N.D. Cent. Code ' 14-20-65.

In Florida, a child conceived after the death of his or her parent only will be eligible to inherit from the deceased parent if the parent affirmatively provided so in his or her will. Fla. Stat. ' 742.17. Most states, however, provide no law on the subject at all and as addressed in the next section, it is imperative that attorneys begin to deal with these issues in their clients' estate plans.

The Solutions

Despite the current uncertain state of the law regarding the definition of issue, there are a number of proactive steps that practitioners can take to avoid future conflicts. The first, and sometimes the most difficult step, is initiating open and honest communications with clients about this topic. It is important to carefully think through who should benefit, and who should not benefit, from a particular estate plan. Further, clients should be made to understand that while assisted reproductive technology may not affect them, it is likely to impact the lives of their children, grandchildren or further descendants. While estate-planning attorneys often ask clients whether they have any adopted children, the discussion needs to be expanded to include children born through assisted reproductive technology and even the possibility of posthumously conceived children.

Once the clients' intentions are articulated, it is important to incorporate those intentions into the estate plan. The estate-planning attorney should no longer rely on boilerplate definitions of 'issue.' It is currently standard practice to specify whether the testator intends to include adopted children and children born out of wedlock. Similar provisions clarifying the testator's intent regarding future descendants born through assisted reproductive technology, including surrogacy, egg and sperm donors and children conceived after the death of a parent should be drafted carefully and comprehensively. The definition, as well as the client's estate plan in general, should be drafted with sufficient flexibility to accommodate unforeseen changes in the law and scientific and social developments, and such definitions should be updated along with the client's other estate planning documents throughout his or her life.

After the definition is drafted and incorporated into the client's will and trust, that definition also should be added to the client's other dispositive documents such as beneficiary designations for retirement plan benefits and life insurance policies. Partnership agreements, shareholder agreements, operating agreements and other similar documents governing the client's business interests also should include this specified definition of issue. Such agreements often contain provisions limiting the transfer of interests in the business entity to the owner's issue. Clearly and carefully defining the term in accordance with the client's intentions is just as important in the documents governing the client's business interests as in the client's will and trust. It also may make sense to add a clause to the client's health care proxy or living will expressing his approval or disapproval of posthumous sperm harvesting to ensure that the client's intentions are honored.

Last, even after carefully providing for the client's wishes in his or her estate plan and related documents, it is important to educate oneself as to the default laws of the client's particular jurisdiction. In other words, if despite the attorney's careful drafting there is a contest or dispute and the client's intentions are challenged, it is important to know what the default law provides. The first step in this challenge is determining which state law applies. The governing jurisdiction can be stated in the document and if it is not, the testator's domicile as of his or her date of death generally governs. In some cases, however, the law of the jurisdiction where the will was drafted, and at the time the will was drafted, governs. When possible, the drafter should specifically state the governing jurisdiction as well as the time period that controls. For example, the documents should state whether the law as of the execution of the document or the law as of the testator's death applies. Also, while the testator is generally required to have some sort of nexus to the chosen jurisdiction, choosing the body of default laws is becoming increasingly important. For instance, as demonstrated above, the states vary greatly regarding the inclusion of posthumous children as issue. Further, if a client's domicile changes, the estate plan should be reviewed in light of the laws governing the definition of issue in addition to the tax and property laws that are considered traditionally.

Conclusion

While certain boiler plate provisions in today's wills and trusts are helpful and appropriate, the standard definition of the term 'issue' is no longer sufficient for most clients. It is the estate planner's current challenge to bridge the gap between how the law defines, or fails to define, the modern family and how the client chooses to define family.

Ellen Schiffer Berkowitz, a member of this newsletter's Board of Editors, is a member of the Trusts and Estates practice group in Holland & Knight's Boston office. She concentrates her practice in the areas of estate planning and the administration of trusts and estates for individuals, families and financial institutions.

As the definition of family becomes increasingly complex, so does the definition of children and further descendants. Who is (and who is not) deemed to be a legal child of a marriage has implications throughout family law. How the law treats adopted children, those born out of wedlock, those born as a result of egg and sperm donation, those born via surrogates and even children conceived after the death of a parent affects support obligations, visitation rights, and often the basic parental rights of heterosexual and same-sex couples. This article addresses the ever-changing definition of children and issue in the context of estate planning and inheritance. (Note: A great deal of the information set forth in this article can be found in Chapter 15 of Adoption and Reproductive Technology Law in Massachusetts entitled Inheritance and Estate Planning Issues for Adoptive and Reproductive Technology Assisted Families authored by Shari A. Levitan, Esq., 625-671 (Susan L. Crockin ed., 2000)).

Who Is One's 'Issue'?

In wills and trusts, it is common for an individual to make a gift to his or her 'issue.' The term 'issue' is meant to include the testator's children and any further descendants, including grandchildren, great grandchildren and so forth. Class gifts such as these are useful because they allow the testator to include descendants born after the date he or she signed the will or trust and remove deceased individuals, all without having to amend his or her estate plan. The challenge associated with using class gifts is that it is often difficult to determine who is included in the class.

In determining who is included among the testator's issue, the intent of the testator controls. It has become standard to include clauses dealing with adopted children and even children born out of wedlock in today's wills and trusts. This is not the case regarding children born as a result of egg or sperm donors or with the help of surrogates. If the drafting attorney does not discuss how the client feels about including or excluding descendants born via various forms of assisted reproductive technology and to consider the possibility that their future descendants may be either the donors or the recipients of genetic material, then the client's intent cannot possibly be set forth in his or her estate-planning documents. If the testator's intent cannot be ascertained, then local statutes and case law will govern. As demonstrated below, the current state of the law is undeveloped at best and should not be relied upon to effectuate a testator's intentions.

The Problem: Old (or No) Laws v. New Technology

The determination of whether an individual is included in a class gift to issue turns on the identity of the individual's parents. This determination has become increasingly complicated as more and more children are born through assisted reproductive technologies. When a child is born to a surrogate mother, one or both or none of the intended parents could be the genetic parents of the child. Many states do not recognize such children as the offspring of the intended parents until there is a formal, legal determination of the relationship, either through adoption or the establishment of paternity or maternity. The consent of the surrogate mother's husband, if she is married, is also often required in such a proceeding. When leaving property to children (and perhaps future children) born via surrogacy, it is important to define carefully the terms 'children' and/or 'issue' in the donor's estate planning documents, especially in light of the possibility of a death before the legal determination of parentage is established. It is equally important to exclude unintended beneficiaries from the estate plan of the surrogate and her family, and again, unless the definition of issue is drafted with care, the surrogate's own family's inheritance could be shared with the child that she carried for others.

As with surrogacy, very little law exists regarding establishing the parentage of children conceived from egg and/or sperm donors. Applying the principles from the surrogacy cases, a legal determination of parentage, such as the adoption of these children, would be necessary for them to be deemed the issue of their intended parents. The same drafting concerns apply here as well and the estate-planning attorney should take special care in defining issue.

While the facts surrounding some of the cases dealing with surrogacy or egg/sperm donation are exceedingly complex, the estate-planning analysis is actually not much different from the cases involving adopted or illegitimate children. In all of these cases, the parties responsible for the child's conception are all alive at the time of conception. What happens, however, when such responsible parties are not alive at the time of conception? With recent scientific advances in the ability to preserve genetic material, conception is now possible after the death of one or more of the child's parents. There is almost no precedent for establishing the parentage of such children. Further, with the continued war in Iraq, what recently sounded like a science fiction novel has become a reality. Approximately 100 soldiers per year deposit sperm in various sperm banks before heading off to war. (Gregg Zoroya, Science Makes Fallen Soldier a Father, USA Today, Feb. 11, 2007 at www.usatoday.com/ news/nation/2007-02-11-soldier-child-cover_x.htm.) They may do so to permit their wives to continue with IVF treatments while they are away, or out of a concern that the soldier will lose fertility because of combat wounds or exposure to toxic chemicals. Others do so out of the simple fear of death. While it is unclear exactly how many children have been conceived after their fathers' deaths in Iraq, the Department of Veterans Affairs reports at least three conceptions as of last February.

Current Law

Under current law, it is simply unclear whether children conceived after the death of a parent would inherit from such parent's estate. The legal landscape is quite diverse and there is no current consensus. The most recent relevant case
in Massachusetts, Woodward v. Commissioner , 760 N.E. 2d 257 (2002), was decided by the state's highest court and it held that a child conceived posthumously could inherit from the deceased parent if: 1) a genetic relationship between the child and the parent could be shown; and 2) the decedent consented to both the conception and the support of that child. In the Woodward case, the children were born two years after the parent's death. While the court acknowledged the need for the timely administration of estates, it did not set that time limit, and directed the legislature to decide how long after the parent's death a child could be recognized. On the other side of the country, in Arizona, in a case with facts similar to Woodward, a district court decided that children born after the death of their father were not his issue. Gillett-Netting v. Barnhart , 371 F.3d 593 (9 th Cir. (Ariz.) June 9, 2004).

While neither the Massachusetts nor Arizona legislatures have responded to these decisions, other legislatures have. Most notably, California passed a statute providing that a child conceived after the death of the parent will be considered the parent's issue if the following three conditions are met: 1) the decedent consented, in writing, to the use of his genetic material; 2) the person using the genetic material notified the decedent's executor or trustee as to the use of the genetic material; and 3) the child is in utero within two years of the decedent's death. California Probate Code ' 249.5. The California statute applies to spouses, domestic partners and any other person designated by the decedent to use the genetic material for posthumous conception. The two-year conception limitation was believed to strike a balance between allowing for a sufficient mourning period and the timely administration of an estate. A compromise similar to the California statute has been presented to the Uniform Probate Code that would allow for a three-year statute of limitations on actions for determining the status of a posthumously conceived child for inheritance purposes, provided that there is notice of the stored genetic material and written consent to conception provided by the decedent. Some states shorten this claim period, for example, to a birth within ten months of the decedent's death. Va. Code Ann ' 20-158 (Michie 1995).

Other states, such as Delaware and North Dakota, do not require that the claim be brought within a certain period of time and instead require other proof of the decedent's intentions such as a separate document setting forth his approval of the use of his sperm after his death. Del. Code Ann., Title 13, Ch. 8, ' 8-707 (2003); N.D. Cent. Code ' 14-20-65.

In Florida, a child conceived after the death of his or her parent only will be eligible to inherit from the deceased parent if the parent affirmatively provided so in his or her will. Fla. Stat. ' 742.17. Most states, however, provide no law on the subject at all and as addressed in the next section, it is imperative that attorneys begin to deal with these issues in their clients' estate plans.

The Solutions

Despite the current uncertain state of the law regarding the definition of issue, there are a number of proactive steps that practitioners can take to avoid future conflicts. The first, and sometimes the most difficult step, is initiating open and honest communications with clients about this topic. It is important to carefully think through who should benefit, and who should not benefit, from a particular estate plan. Further, clients should be made to understand that while assisted reproductive technology may not affect them, it is likely to impact the lives of their children, grandchildren or further descendants. While estate-planning attorneys often ask clients whether they have any adopted children, the discussion needs to be expanded to include children born through assisted reproductive technology and even the possibility of posthumously conceived children.

Once the clients' intentions are articulated, it is important to incorporate those intentions into the estate plan. The estate-planning attorney should no longer rely on boilerplate definitions of 'issue.' It is currently standard practice to specify whether the testator intends to include adopted children and children born out of wedlock. Similar provisions clarifying the testator's intent regarding future descendants born through assisted reproductive technology, including surrogacy, egg and sperm donors and children conceived after the death of a parent should be drafted carefully and comprehensively. The definition, as well as the client's estate plan in general, should be drafted with sufficient flexibility to accommodate unforeseen changes in the law and scientific and social developments, and such definitions should be updated along with the client's other estate planning documents throughout his or her life.

After the definition is drafted and incorporated into the client's will and trust, that definition also should be added to the client's other dispositive documents such as beneficiary designations for retirement plan benefits and life insurance policies. Partnership agreements, shareholder agreements, operating agreements and other similar documents governing the client's business interests also should include this specified definition of issue. Such agreements often contain provisions limiting the transfer of interests in the business entity to the owner's issue. Clearly and carefully defining the term in accordance with the client's intentions is just as important in the documents governing the client's business interests as in the client's will and trust. It also may make sense to add a clause to the client's health care proxy or living will expressing his approval or disapproval of posthumous sperm harvesting to ensure that the client's intentions are honored.

Last, even after carefully providing for the client's wishes in his or her estate plan and related documents, it is important to educate oneself as to the default laws of the client's particular jurisdiction. In other words, if despite the attorney's careful drafting there is a contest or dispute and the client's intentions are challenged, it is important to know what the default law provides. The first step in this challenge is determining which state law applies. The governing jurisdiction can be stated in the document and if it is not, the testator's domicile as of his or her date of death generally governs. In some cases, however, the law of the jurisdiction where the will was drafted, and at the time the will was drafted, governs. When possible, the drafter should specifically state the governing jurisdiction as well as the time period that controls. For example, the documents should state whether the law as of the execution of the document or the law as of the testator's death applies. Also, while the testator is generally required to have some sort of nexus to the chosen jurisdiction, choosing the body of default laws is becoming increasingly important. For instance, as demonstrated above, the states vary greatly regarding the inclusion of posthumous children as issue. Further, if a client's domicile changes, the estate plan should be reviewed in light of the laws governing the definition of issue in addition to the tax and property laws that are considered traditionally.

Conclusion

While certain boiler plate provisions in today's wills and trusts are helpful and appropriate, the standard definition of the term 'issue' is no longer sufficient for most clients. It is the estate planner's current challenge to bridge the gap between how the law defines, or fails to define, the modern family and how the client chooses to define family.

Ellen Schiffer Berkowitz, a member of this newsletter's Board of Editors, is a member of the Trusts and Estates practice group in Holland & Knight's Boston office. She concentrates her practice in the areas of estate planning and the administration of trusts and estates for individuals, families and financial institutions.