Posthumous Conception in Florida Consider this scenario. A husband and wife prepare reciprocal wills where a portion of the estate goes to their “issue”. The couple while undergoing IVF, freezes and stores unused embryos for future use. Following the death of the husband, the wife, who then remarried, utilizes the frozen embryos and gives birth to twins years after her husband’s death. This raises issues such as: are the twins beneficiaries of the estate? Should it matter when the twins were born? Does it matter if the late husband authorized the use of the embryos? Does it matter that the woman remarried? Another consideration is the instruments created by the late husband’s parents. If a long term trust was created for their grandchildren, would the twins be a beneficiary of that trust? The leaps in technology with assisted reproductive technology (“ART”) such as the ability to freeze eggs, sperm, and embryos, has created numerous new legal implications in various areas, including intestacy and what happens to children conceived and born after the death of a parent. Whether a person is old, married, single, same sex or heterosexual, consideration must be made whether they have (i) preserved genetic material, (ii) may do so in the future, (iii) or is including in their documents a provision for grandchildren, issue, or descendants. In 2012, the United States Supreme Court ruled in Astrue v. Capato, 132 S. Ct. 2012 (2012), that a deceased man’s twins that were conceived after his death were not eligible for Social Security survivor benefits. The Court looked to the state law of the deceased (Florida), and determined that because the children that were conceived following his death were not provided for in the will, they were not heirs of their deceased father under the state law. Posthumous conception is a concept being addressed nationally, with sixteen states having passed probate statutes addressing the interest of posthumously conceived children, and the Social Security Administration has received more than 100 applications for survivor benefits. The Social Security Administration has noted that the rate of benefit applications by posthumously conceived children has “increased significantly” in recent years. Courts, legislatures, and commentators have focused on the circumstances, if any, under which a posthumously conceived child should be entitled to inherit from a deceased parent. Pursuant to Florida Statutes 742.17, a posthumously conceived child may bring a claim against the decedent’s state but only if the decedent provided for the child in the decedent’s will. This statute is contained within Florida’s parentage statute, not its probate statute, and does not clarify what type of “claims” the child may bring or by when the child must bring such a claim. Additional legal considerations are the implications for fiduciaries of a trust. If a fiduciary distributes assets and a child is conceived after the death of a parent, should the fiduciary face liability for distributing assets prematurely? Does it matter whether the fiduciary had notice of the frozen genetic material? Should the surviving party have a duty to disclose to the fiduciary the existence of frozen genetic material? Despite the clear intent in trust documents as to the treatment of posthumously conceived children, instructions or statements of intent in a will do not control non-probate assets governed by beneficiary designations, specifically life insurance and retirement account benefits as custodians generally have authority to establish their own rules. It is important to review your beneficiary designation forms when contemplating the use of frozen genetic materisl. The advantage of providing for posthumously conceived children is it respects the dignity of the child and avoids penalizes the child for being born by means of ART. Conversely, some fear that allowing for inheritance for posthumously conceived children may result in abuse by the surviving spouse by seeking benefits for the child conceived after the death of a spouse. When talking to a trust and estate lawyer, the following language should be discussed on whether to add it into your documents: (1) whether the deceased parent’s consent should be required to use the genetic material (including what exactly the decedent must have consented to and the level of proof required), (2) what effect, if any, marriage or remarriage should have on inheritance rights for the posthumously conceived child (generally remarriage of the surviving parent should cut off inheritance rights from the deceased parent), (3) what time limitations should apply to allow for inheritance for a posthumously conceived child, (4) whether the surviving partner should be required to provide notice to the fiduciary of the intent to use frozen genetic material, (5) whether to limit a fiduciary’s liability, and (6) whether an express intent is expressed in the documents setting out the parties wishes as to the use of frozen genetic material. Another consideration with frozen genetic material and rights upon the death of the parties is a will should include a statement clarifying the intentions regarding what happens to the frozen material after death and during any period of incapacity. Florida Statute 742.17 provides that in the event of death, the eggs or sperm remain under the control of the contributor and the pre-embryos are subject to joint control. Language may also be added to a Power of Attorney to provide a partner with specific authority to make decisions regarding the storage and transfer of the genetic material and to initiate, consent to, and pay for ART procedures during any period of incapacity. The use of frozen genetic material is no longer science fiction and it is important to think outside the box on how posthumously conceived children can impact your estate planning documents. For more specific language to add to your trust documents, please email me at Marla.Neufeld@gmlaw.com.