Babies Conceived After The Death of A Parent – What to Consider with 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. 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 material. 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. 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. According to Greenspoon Marder LLP attorney David Kron as cited in the American Bar Association's Guide to Assisted Reproduction: Techniques, Legal Issues, and Pathways to Success
The reasons for the need for an estate plan may also include:
  1. A child reaching the age of majority, as parents will no longer be able to perform financial transactions or make health-related decisions, on behalf of their newly adult child. This may necessitate the need for a power of attorney, a healthcare surrogate, and a living will;
  2. Distribution from a bank account. Who will receive this bank account upon the death of its owner? This may necessitate the need for a simple last will and testament, or a revocable living trust;
  3. Having a new child, through surrogacy or adoption. This may necessitate not only the documents above but also brings in guardianship considerations for the minor child;
  4. Other life changes, such as marriage, divorce, inheritance, the sale of a business, wealth preservation, and tax planning.
In a nutshell, any change in an individual’s life could necessitate estate planning considerations. The types of estate planning that may be appropriate for an individual may include a simple last will and testament, or it may include complex irrevocable and revocable living trusts and family limited partnerships. The type of planning required depends on the needs of the client, which is why it is so important for an attorney to spend some time getting to know his or her client. Determining the needs of each client is an imperative step in arriving at what components are most important to include in such client’s planning. Good estate planning does not come from a “one size fits all” approach. It is a process by which a client shares his or her thoughts, concerns, and life changes. The correct provisions, language, and documents are arrived at as a result of those factors, through careful consideration and planning. Without an estate plan in place, the death of an individual will cause his or her estate to be “intestate.” An intestate estate is one in which there is no intended estate plan. What this means is that the state law on inheritance will control. This oftentimes causes unintended heirs to receive assets. In addition, such heirs will inherit in a manner determined by law and not by the individual. In intestacy, the assets will either be distributed outright or held for the benefit of the heirs, not based on their own situation and capabilities but according to ages set forth by the state. Furthermore, if a minor is the statutory heir, a guardian for the heir’s inherited property will have to be appointed for the duration of the heir’s minority. The appointment of such guardian could become an expensive process. In addition, if an individual should become incapacitated (through illness, accident, or old age) but is still living, and there aren’t any estate planning documents in place (such as a durable power of attorney, healthcare surrogate, or living will), a guardian will have to be appointed for such an incapacitated individual so that decisions may be made.This could take time, cost money, and may lead to a conflict among loved ones, all of whom believe that they should be appointed as guardian. Perhaps the biggest issue for a young family, however, is the guardianship of minor children. Without a clear direction, set forth in a validly executed estate plan, many well-intentioned relatives may wind up fighting in court, as to whom will be appointed to serve as the guardian of the minor children, if a guardian is ever needed
  A recent development in the retrieval of frozen sperm after the death of a person occurred in New York where the parents of their deceased son obtained a court order to preserve his sperm upon his death in a skiing accident. The actual sperm was ordered to be retrieved and held in storage pending a further determination as to who can actually use the sperm. This is a unique case as typically past cases where sperm has been posthumously retrieved is requested by the spouse or partner, where best practices recommend a written consent from the deceased to retrieve such sperm. State law also varies on whether genetic material can be retrieved after death. For more specific language to add to your trust documents, please email me at