Minor Matters: Addressing the Inheritance Rights of the Unborn

With the use of Assisted Reproductive Technology (ART), it is now possible for a child to be born years after a parent's death. What does that mean for the child's inheritance?

We live in an incredible age of medical advancements designed to help us achieve better health outcomes in a variety of areas. And now, couples struggling with infertility have more hope than ever in achieving a successful pregnancy. Through Assisted Reproductive Technology (ART), the dream of having a family is within their reach. Many of these technologies, like in-vitro fertilization (IVF), involve cryopreserving genetic material, including eggs and embryos, for future use, which creates several legal issues that anyone contemplating using these technologies to have a family should consider.

FACT: Under current NC law, in order for a child to inherit after a parent's death, the child must either be alive at the time of the parent's death or born within 10 months of the parent's death. Yet, with ART, a child could actually be conceived after the death of its parents. With a willing surrogate, it is scientifically possible for a child to be born years after a parent's death and even after the death of both parents. Given the requirements of North Carolina law for inheritance, what does that mean for the child's inheritance? How does that affect the definition of "descendants" or "family" that may be used in estate plan documents?

FACT: One of the biggest questions facing those who pursue IVF is what to do with unused frozen embryos. Options include saving them to use for another child later, donating them to someone else, or disposing of them. Suppose a couple chooses Option 1 (saving them for later) but dies before having a chance to use them. What should happen to the embryos at that point? The same question could be asked of any cryopreserved genetic material after the original donor's death. Is the material to be destroyed? Is someone (a spouse, perhaps?) to "inherit" the material? How are any storage fees to be paid?

FACT: It is medically possible to acquire reproductive and genetic material from people on life support. This was proven in 2019 when the parents of a West Point Cadet sued to be able to harvest their dead son's sperm. They asked the Court to order that their son remain on life support until collection. A New York judge agreed to their request. Whether you applaud the parents' efforts to continue their family lineage or you look on their actions in horror, the point here is that these technologies exist. And if a child were to be born from the West Point Cadet's sperm, then the legal questions and inheritance issues are significant.

Remember, the law often lags behind science. So, the best course of action for a client with cryopreserved genetic material or an interest in Assisted Reproductive Technology is to talk through the various legal issues with a knowledgeable estate planning attorney. You must be proactive to make sure your estate plan covers all the potential legal ramifications so that you and your family are protected! Contact us today to start the conversation.

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