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."

The science has definitely gotten ahead of the law, says William Zabel, an estate lawyer with Schulte, Roth & Zabel LLP in New York. It's complicated because a will may say, "I leave my estate to my son's issue or descendants," but is an in vitro baby "my son's issue"? What about a baby that was born of eggs from the wife but who came from donated sperm?
"Is a child born from sperm taken from a dead person killed in an automobile accident considered an heir for inheritance purposes?" Zabel asks.

While assisted reproductive technology raises a whole host of issues in the probate process, the concept of postmortem conception may be the most nettlesome. People can clearly state in their wills their intentions with regard to frozen embryos and sperm. But what about the children they didn't anticipate? With advancements in biotechnology making postmortem sperm retrieval possible, these once unthinkable problems could become a reality.

"It's such a small subset of people who do that, you'd think if they wanted [the children] to inherit, they'd have said so," says Joshua Rubenstein, an estate attorney with Katten Muchin Rosenman LLP in New York. Rubenstein says that this is the way most states see it too-that the deceased should have expressed their intentions and that those with a claim can't wait forever, perhaps only two to three years.

There's no question some of the cases are brought by gold diggers whose gravy train has ended. But sometimes it's simply that a husband has died in a car crash, Rubenstein says.

When science precedes the law, different states come up with patchwork solutions. About one-third of the states have statutes or case law that determine parentage when a person's gametes are used after their death. Ten states have statutes excluding the decedent from being a parent of the resulting child, unless the states are satisfied by what's in writing.

Seven of the ten-Colorado, Texas, Utah, Washington, Delaware, North Dakota and Wyoming-adopted a section of the 2000 version of the Uniform Parentage Act. This says that if a spouse dies before placement of eggs, sperm or embryos, the deceased spouse is not a parent of the resulting child unless he has explicitly stated in a record that he considers himself so when assisted reproduction occurs after his death.

Florida enacted a similar statute but said any child conceived postmortem must also have been provided for in the decedent's will. California and Louisiana not only require the decedent's consent to use their gametes postmortem, but they specify a timetable within which the gametes must be used to produce that child.

The result is that in these ten states, the decedent may be considered the parent, allowing the child to inherit his wealth, if the statute's "writing requirements" are satisfied. If they have not been satisfied, then the decedent will not be considered the parent, and the child will not inherit from the estate.

"A lot of states have said there has to be consent on record," says Teresa Baird, an attorney with Fairfield & Woods, a Denver-based firm that has made a name for itself in this field.

But that's when there are explicit statutes. In other states like New Jersey, Massachusetts and Arizona, some issues have inadvertently been determined by case law. A case in New Jersey involved the estate of William Kolacy, whose wife had two children using his sperm a year after he died. His wife wanted the children to receive Social Security survivor benefits. The New Jersey Superior Court looked at the state's existing statute, which said relatives of the decedent conceived before his death but born afterward inherit as if they had been born before the decedent died. But the court found the state did not address the issues of reproductive technology. It decided to look at another statute, which said a child born within 300 days of termination of a marriage by death is a child of the marriage nonetheless. Likewise, it said a child born more than 300 days after one's spouse's death was not a child of the marriage. To that end, it found the children conceived of Kolacy's sperm were indeed his progeny.

In a Massachusetts case, Social Security benefits were also at issue. The plaintiff was impregnated with the sperm of her deceased husband and gave birth to twin daughters. Her husband had banked the sperm before undergoing treatment for leukemia, which eventually killed him. The Social Security Administration denied the benefits and the widow sued in federal court. The U.S. District Court awarded her children benefits, saying if there is indeed a genetic relationship between the child and the decedent, and the decedent clearly consented to posthumous conception and to supporting that child, then the children are eligible for his inheritance.

In Arizona, in yet another Social Security case, the court didn't even dispute the parentage of the children. It held that the children need only prove, under Arizona law, that they were the father's legitimate children. Once established, dependency at the time of the father's death was presumed and benefits were thus awarded.

But while the three cases turned out favorable to children conceived postmortem, there have been a string of cases since then that have not been so generous-the primary one being the case in Florida in which the wife had sperm retrieved from her husband postmortem. The case, Stephen v. Barnhart, is the only one to date in which the decedent's gametes were retrieved after his death rather than voluntarily stored while he was alive, though observers say that fact was irrelevant to the court's decision.

Baird says she found the case in Florida so intriguing, her firm contacted several hospitals in Colorado to see if they retrieve sperm post mortem. She was told they did not.

"Everyone we contacted, and we contacted quite a number, said they hadn't even heard of it," Baird says.

There was another postmortem conception case, out of New York, but the courts in that case allowed the child to be a beneficiary. In that case, the husband froze sperm before he got chemotherapy treatments for cancer. The treatments didn't go well and the man died. The wife used his sperm to have several children. The man had not accounted for these children in his estate plan, so the trust that had been set up for his heirs sought guidance from the court. In the end, the court looked to the man's intent and determined there was enough evidence to say he would have wanted these children to be beneficiaries of his trust.

"It's one thing to have frozen embryos and go through with it. You have cancer, you want your wife to be able to have kids, versus, the wife extracts his sperm without his knowledge," Baird says. "Unless he had some document saying he had always wanted kids no matter what, I think [in the latter case] the court would likely say the child would not be a beneficiary."

In Missouri, there are no laws regarding reproductive technology, and that's actually hurt gay couples, says Dara Strickland, a family law attorney in St. Louis. Strickland had as clients a lesbian couple that decided several years ago to have children together. Each woman conceived a child. But after several years, they broke up, and now one parent doesn't want the other to see her child. The courts allowed that parent to sever ties with the other parent.

"The court in Missouri found there is no room in Missouri law for a child to have two mothers," Strickland says.

Interestingly, Missouri's "contracts laws" are actually very strong, so Strickland helps her clients structure contracts to protect their rights when it comes to the fruit of assisted reproductive technologies. Before the children are born, the genetic material collected is actually considered property. Strickland helped write a contract for one couple, for instance, that bought leftover frozen embryos from another couple that no longer needed them.

"It's definitely something you want a very clear contract about," Strickland says.

The issue of frozen embryos, eggs and sperm gets even murkier when one party wants to destroy them and the other party does not, which forces one party to be a parent against his or her will. It's joint property, but it's questionable whether the laws that apply to property should apply to genetic property.

"If a husband and wife have a house together, and the husband burns the house down, he has deprived the wife of her ability to enjoy her property. She might have a claim against him in court," Strickland says. "There may have to be some sort of legislative recognition that the rights you have over a car or a watch are not the same rights you have over human tissue."

Alton Abramowitz, a matrimonial lawyer with Mayerson Stutman Abramowitz LLP in New York, likened it to the paternity cases that arise when two people have a casual sexual encounter that results in a child. The father is legally responsible for supporting that child, says Abramowitz, who made a name for himself representing Tom Jones in a paternity suit filed against him by a woman with whom he had a casual fling. Jones lost.

"It's a real problem with today's technology," Abramowitz says. "I know some labs now require people to agree in advance as to what happens to the embryos in the event of death or divorce."

Indeed, most reputable clinics will have their patients sign documents detailing how to dispose of the genetic property in the event of a death or divorce.

"What happens is dictated by the contract of the fertility clinic," Rubenstein says. "If the contract says what happens, that's what happens, unless the parties change it. Some states now require in the contract with the fertility clinic that, in the event of a disagreement between the husband and wife, the genetic material must be donated to research or destroyed. They don't want to get involved."

But not all fertility clinics come up with such a contract, and when they don't, it can get messy, says Tami Clemenza-Wilson, a CPA and partner with Morrison, Brown, Argiz & Farra LLP (MBAF), an accounting firm in Miami.

Say a man and a woman are getting along, and he tells his wife that if something happens to him, he wants her to go have the kid. But then they have marital problems. He has to go back and take care of that in the estate-planning process or that child is going to be recognized as an heir, Clemenza-Wilson says.

She has her clients check out the legality of the documents they sign at the clinic, and then incorporates them into an estate plan.

"If there's no written agreement, it's a free-for-all," she says. "That's where you're going to have all the lawsuits."

The rights of parties are either determined by contract law or statute, and at this point, there aren't many statutes, and there isn't much case law, says Marlene Eskind Moses, president of the American Academy of Matrimonial Lawyers. For that reason, it's critically important that the contracts between parties and depositaries of genetic material have a clear understanding of what the circumstances will be, under any situation, she says.

"Things can go wrong, and it's not something that should be left up to a determination later," Eskind Moses says. "You don't want to rely on the courts at that point. It's expensive to litigate, and it could have been addressed at the front end."