Today, more and more families rely upon assisted reproduction technologies in order to conceive a child or children. According to Forbes magazine, that number is at a quarter-million families a year and rising. Couples or individuals may utilize artificial insemination, egg and embryo donation, and post-death gamete harvesting or conception as means for having a child. With these new technologies come new questions, though, regarding estate planning, the law and families that rely on assisted reproduction.
These methods can be especially useful for military families, as well as persons with cancer, as both might choose to freeze genetic material to use in the event of a premature death (in the case of military personnel) or treatments leading to infertility (in the case of cancer patients).
Your Wisconsin estate plan can provide necessary instruction to your family regarding how you want this genetic material treated after your death, and how you desire to plan for any children conceived with that material after your death. You may consent, or deny consent, to the use of this material after your death. You may also plan to leave a distribution to any posthumously conceived children, but must do so specifically and carefully. If your estate plan simply leaves an inheritance to “my children”, this would leave nothing to your posthumously conceived children, as Wis. Stat. § 854.21(5) specifically limits such classes as “children”, “nieces and nephews”, etc. to individuals who are alive, or at least conceived, at the time of your death. A recent U.S. Supreme Court case also stated that only living, or conceived, children could receive survivor’s benefits from government programs (such as Social Security).
Your estate plan may also establish a financial means for your spouse or partner to continue assisted reproduction treatment. For example, your trust could permit your spouse or partner to invade the trust’s principal to fund the continuation of a treatment you have begun and were pursuing at the time of your death.
In addition to these circumstances, there is also the matter of maintaining stored genetic material. Storing genetic material is often very expensive, and if you do not wish to have your material destroyed at death, your estate plan should indicate who has ownership of the material and who has responsibility for the financial costs of continuing to store that material.
Additionally, surrogacy also offers its own unique set of estate planning challenges. Of particular importance to those considering having a child with the help of a surrogate mother is proper and thorough estate planning provisions regarding guardianship of your child. Your estate plan should make clear who steps in as guardian of your child if you and your spouse or partner die before the child is born.
Estate planning can become dramatically more complex if you are pursuing assisted reproduction treatment. To ensure that you get the best in knowledgeable, thoughtful and personalized advice, consult attorney Dan Krause of Krause Law Offices LLC. Attorney Daniel J. Krause has years of experience creating all types of estate plans for all types of families and can help you craft the best plan for your unique needs.
Contact us through our website or call our office at (608) 268-5751 to schedule your confidential, no obligation initial consultation.
Fair and Equal Inheritance for Your Children, Wisconsin Probate & Estate Planning Blog, Feb. 27, 2013
Telling Your Children About Their Inheritance, Wisconsin Probate & Estate Planning Blog, Dec. 6, 2012
Considering Some Tough Wisconsin Estate Planning Questions, Wisconsin Probate & Estate Planning Blog, Oct. 2, 2012