Estate Planning and Assisted Reproductive Technology

By: Julie E. Firestone, Esq. and Abbie R. Pappas, Esq.

The goal of proper estate planning is, ideally, to provide peace of mind that a client’s property will pass to his or her loved ones, which is most often his or her family. With recent advances in assisted reproductive technology (“ART”), there are now countless ways in which a client’s family might be created. But unfortunately, when it comes to estate planning, the law simply has not kept up.

For centuries, the law in the area of parentage and estate planning has been, if not perfect, at least clear-cut. A woman who birthed a child was deemed to be the baby’s mother, and the man who was married to that woman was deemed to be the father. When the father or mother died, the law was structured to pass his or her respective property to that child, as the “natural object” of his or her “bounty” (i.e., assets). Similarly, the law deemed the mother’s parents and the father’s parents to be the grandparents of the child, and the child was also considered the natural object of the grandparents’ “bounty”. Therefore, in most (albeit certainly not all) situations, the law, the biology, and the intent of the parties was likely in harmony.

However, we are now faced with a modern world in which the law, the biology, and the client’s intent sometimes do not match up. What changed? The answer is the rapid development of various ART methods and processes, such as surrogacy, artificial insemination, and in vitro fertilization (“IVF”). With multiple parties now involved, such as genetic donors, surrogates, and intended parents, there are uncertainties as to how property will pass, and to whom it will pass. These uncertainties are compounded by the fact that ART procedures and relationships often occur – unlike divorce, adoption, or marriage – entirely outside of any court processes.

Consider a man (“Marshall”) and woman (“Lilly”) who want to have children, but are unable to conceive a child.  Instead, they begin the IVF process and store frozen embryos at a medical facility. Then, suppose Marshall dies, or the couple separate or divorce, while the embryos are still frozen and usable. Later, Lilly and her new spouse, Sam, use one of the frozen embryos and baby Barney is born, whom Lilly and Sam raise as their own. On any party’s death, who are Barney’s parents? Who are Barney’s grandparents? Who might not want to leave his or her property to Barney and, therefore, does not want to be treated as Barney’s parents or grandparents? What does Ohio law say about all this?

Under Ohio law, ART is defined as “any medical or scientific technology or method designed to assist one or more persons to cause a pregnancy through means other than by sexual intercourse.”[1] Examples of ART under Ohio law include artificial or assisted insemination, IVF, and surrogacy. As the scenario above highlights, ART creates legal challenges because it is a scientific process that creates a legal relationship outside of standard biology, and outside of the legal system (as compared to adoption, which is usually a legal process). Therefore, ART can create uncertainty as to relationships, intentions, and property rights, especially during the estate planning process.

Under Ohio’s estate planning laws, relationships are important and often determine who receives a person’s property on death:

  • In Ohio, when a person dies without a Last Will and Testament (a “Will”), which is known as dying “intestate”, the decedent’s “child” (for the purpose of determining who is entitled to receive the decedent’s assets) is defined as a person born to the female intestate, or to the wife of a male intestate, within 300 days after the death of the intestate.[2]
  • For a person with a Will (a “testator”), the default definition of a child is the same, but the testator can extend the time period to include a child born up to one year plus 300 days after his or her death (by specifically stating so in his or her Will).[3]
  • In the case of a trust, the “child” is defined as the person born within 300 days of (1) the death of the person who created the trust, or (2) another event which fixed in time the class of individuals who are to be included as beneficiaries (such as the date of the creation of an Irrevocable Trust). However, similarly to Wills, a trust’s governing instrument can specifically extend the default rule to include those children born within a maximum of five years.[4]

Let’s consider how these laws apply to our hypothetical. If Lilly had conceived Barney with Marshall without the assistance of ART, Lilly would have given birth within 300 days of Marshall’s death or her divorce from him, and Barney would have been deemed Lilly’s and Marshall’s child. Therefore, if Lilly or Marshall later died as an unmarried person, his or her respective property would pass to Barney (either by default, if there was no Will, or if Lilly or Marshall had left a Will leaving specific property to his or her descendants or children). Barney would also, for estate planning purposes, be deemed to be a grandchild of Lilly’s and Marshall’s parents.

Under current Ohio law, if Marshall and Lilly agreed, while still married, to use one of their frozen embryos, and Barney was born from that embryo within 300 days of Marshall’s death, he would be considered Marshall’s child. On the other hand, if Barney were born, through ART, more than 300 days after Marshall’s death, he would not be deemed Marshall’s child and, therefore, would not be a beneficiary of Marshall’s estate, unless Marshall’s Will or Trust specifically stated otherwise (and only, in that case, if he was born within the maximum time frame allowable under the law). In that case, Barney also would not be deemed to be a grandchild with respect to Marshall’s parents, unless their estate planning documents specifically stated otherwise. It is possible that these default outcomes would reflect Marshall’s intent and his parents’ intent with respect to the passing of their property – but also quite possible that they would not.

There are many other foreseeable situations under which the default rules of Ohio law, as detailed above, would not reflect the intentions of the parties. For example, a couple might choose to freeze embryos in response to one spouse’s terminal illness, anticipating that the surviving spouse will use the embryos after – perhaps several years after – the death of the terminally ill spouse. Couples might make similar decisions in response to impending military deployments, foreign assignments or other high-risk life events. These parents may very well intend that babies born of those frozen embryos be considered their “children” for the purposes of their estate plans, even if such children are born well beyond the 300-day mark.

In addition, a couple may freeze embryos together, but later divorce – and either (or both) parties may feel strongly that any child resulting from those embryos should not be considered their “child”. Or, they may feel strongly that children resulting from such embryos should be considered their “child”.  As you can see, estate planning intentions may be quite different for everyone!

Thankfully, an estate planning attorney can account for and anticipate many of these situations when preparing Wills and Trust Agreements.  For example, if Marshall wanted to include Barney in his estate plan, along with any other children born from the embryos that he froze with Lilly, he could specifically state so in his Will or Trust. To the contrary, Marshall’s parents, if they wished, could specifically state in their Wills or Trust Agreements that children resulting from these frozen embryos were not their “descendants” for the purposes of their estate plan. In other words, these clients and their families could work with their estate planning attorneys to ensure that their precise intentions were reflected in their documents, as long as they are aware of the possibility of children conceived through ART.

In conclusion, while estate planning laws in Ohio have developed to some extent in recognition of the advances in ART, it is impossible to accomplish each individual client’s intentions simply by relying on the default laws. The best way for clients to have peace of mind that their property will pass on their deaths as they intend is to consult with qualified estate planning attorneys. If a client has any concerns related to ART or its possible effects on his or her family relationships, the client should alert his or her estate planning attorney to those concerns at the beginning of the engagement. At SMDK, our estate planning attorneys will help ensure that your estate plan honors your family relationships, regardless of how – whether through biology or science – those relationships were created.

Should you have questions on this topic, please feel free to contact any of our estate planning attorneys:  William M. Mills, Julie E. Firestone, Jean M. Cullen and Abbie R. Pappas.

[1] Ohio Revised Code Section (“ORC §”) 5801.12.

[2] ORC § 2105.14.

[3] ORC § 2107.34(C).

[4] ORC § 5801.12(C), (D)(1), and (D)(2).