Do You Know Who Your Descendants Are?

The intersection of law and technology has received heightened attention in recent years due to the increasing importance of social media in our daily lives and the resulting implications for our personal privacy and confidential information. This modern interrelation between law and technology is becoming increasingly important in the field of estate planning, particularly in light of the recent increase in the use of assisted reproductive technologies (“ART”), such as the utilization of in vitro fertilization technology to produce children.

According to the Centers for Disease Control and Prevention, in 2010, more than 99% of all ART cycles performed nationwide were performed using in vitro fertilization technology. While this technology is considered nothing short of a miracle for those persons who are unable to conceive children naturally, it also poses an array of interesting and complex problems with regard to estate planning and inheritance laws.

For example, courts have recently been confronted with the question of whether posthumously conceived children can benefit from a trust. In the 2007 case of In re Martin B., the grantor established multiple trusts that were worth hundreds of millions of dollars. One of the grantor’s sons died just six months before the grantor, and the son’s wife utilized a frozen sperm sample to conceive two sons using in vitro fertilization technology. The trust agreements all provided that, when the grantor’s wife died, the principal of the trust would be distributed to the grantor’s “descendants.” This raised the complicated question of whether, for the purpose of trust agreements, the term “descendants” included the two children that were conceived following the death of the grantor’s son. The court ultimately determined that the children born through in vitro fertilization were entitled to the same rights as those children that were conceived naturally.

Another example of modern legal complications resulting from the use of ART can be found in the recent United States Supreme Court case of Astrue v. Capato, where Karen Capato, who gave birth to twins using in vitro fertilization following the death of her husband, was denied Social Security benefits because the twins did not fit the definition of “child(ren)” under Title II of the Social Security Act. In a unanimous decision, the Supreme Court held that the Social Security Administration’s denial of benefits to the twins constituted a permissible interpretation of the statute, as the twins were not the children of married parents. The fact that Ms. Capato was domiciled in Florida also played an important role in this decision, as Justice Ginsburg pointed out that, under Florida law, a marriage ended upon the death of a spouse.

In light of the increasing availability and use of new reproductive technologies, and the seemingly opposite results reached in the foregoing cases, new and complex legal issues will undoubtedly continue to arise, particularly with regard to estate planning. While consulting with experienced professionals when creating an estate plan is always a wise decision, it is of particular importance when the potential exists for the posthumous conception of a child using in vitro fertilization and other ART techniques.

Each state’s laws on these modern reproductive issues vary and are still developing as courts and state legislatures try to keep up with new advances in technology. Therefore, if you are creating an estate plan that will be governed by Florida law, it is important that you have the assistance of a Florida attorney who is knowledgeable of the newest legal developments relating to inheritance and technology. The legal team at Chepenik Trushin LLP is ready, willing, and able to assist you in creating a comprehensive estate plan that accords with both your wishes and Florida law. Please do not hesitate to contact us for an initial consultation.