A man died in 1997 of a heart attack. The following day, his widow extracted sperm from his dead body and cryopreserved it. Four years later, she gave birth to a child conceived with her eggs and her dead husband's sperm. She then filed for Social Security benefits for her child as the surviving dependent of a deceased wage earner. Her application was denied.
The courts noted that under Florida law, a child conceived to a man who is already dead is not eligible for a claim against the man's estate unless the child was named in the dead man's will. Moreover, the court reasoned the child could not have been a dependent of the man, given that he was not born until four years after the man had died.
These are some of the odd questions arising in estate planning circles with the proliferation of children born through assisted reproductive technologies such as in vitro fertilization (IVF) and intrauterine insemination (IUI). You can plan for how you want your assets to be disseminated to your children, but what about the children you didn't even know you were going to have-because they were born after you were gone?
Men have been freezing their sperm since the technology was first developed back in the 1950s. Thirty years later, the technology expanded to include frozen embryos. Today, couples are freezing all materials of reproduction, from unfertilized eggs to ovarian tissue.
The simplest solution for dealing with the fruits of reproductive technology is to account for them in the estate plan, explicitly. Just as most estate planners now ask couples whether they've signed any prenuptial agreements, questionnaires given to new clients increasingly ask whether they have any frozen reproductive material and what they plan to do with it after they die.
"You have to be careful when you do the estate plan. You have to ask," says Kevin Bock, a financial advisor with Integrity Estate Advisors in Greenberg, Pa. "You can have a child you didn't know about come back down the road and want a piece of what you've done, especially if you've been successful."
If his clients say they do have frozen eggs, embryos or sperm, that's taken into account in the estate planning documents, which should specify whether the child born of those products is entitled to a share of the estate.
"It definitely needs to be addressed by every estate planner," Bock says. "It's going to become more and more of an issue in the future."
Robert Alexander, an estate-planning attorney with Alexander & Klemmer in Milwaukee, Wis., says reproduction has become a big topic in estate planning. He even heard of a group of advisors devoting a seminar to it on a recent trip to Rapid City, S.D., where he was speaking. The group discussed the recent squabbling about post-death rights to embryos and sperm and who should be considered an heir.
"I can see if this were New York or Las Vegas or Hollywood, but this is Rapid City, South Dakota, which has about 56,000 people," Alexander says. "It's a traditional farming/ranching community with conservative values. And yet even there, they've had a lot of problems recently with this issue."