Sons Conceived In Vitro Ruled Covered by Trusts

As technology races ahead in the development of new forms of assisted reproductive technology, the courts are struggling to keep up.  From a probate litigation standpoint, the question is what legal rights - if any - does a child both born and conceived after the father's death have?  In an article entitled Posthumous Reproduction, Prof. Charles P. Kindregan, Jr., of Suffolk University Law School in Boston, described the legal landscape this way:

Until very recently, legal issues surrounding posthumous children focused on inheritance rights of a child who was conceived while the biological parents were alive with the child being born after the death of the father. The law largely deals with this problem by providing for the legal heirship of children born within the normal gestational period following the death of the father. But the development of such technologies as intrauterine insemination, in vitro fertilization, surrogacy, cryopreservation of gametes and embryos and (someday) human reproductive cloning have created the potential for an entirely different set of legal issues. These issues are not based on the birth of a child after the death of the father when the child is conceived prior to the father’s death. Instead, the new reality is based on conceiving a child or implanting a preexisting embryo after the death of a genetic parent or parents. This article explores some of the evolving issues created by the use of cryopreserved gametes and embryos after the death of one or both gamete providers.

In Florida, the inheritance rights of a child who was conceived while the biological parents were alive but born after the death of the father, are governed by Florida Statute section 732.106:

732.106 Afterborn heirs.--Heirs of the decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decedent's lifetime.

Florida has no statute governing the inheritance rights of a child conceived after the father's death.  In the absence of guiding legislation, courts are forced to fall back upon general rules of construction within the probate and trust context.  That's what a court in New York recently did, as reported on in Sons Conceived In Vitro Ruled Covered by Trusts, when it ruled that two children conceived and born after the father's death were nonetheless intended beneficiaries of the father's trust.  My guess is that a Florida court faced with similar facts would likely come to the same conclusion.  Here's an excerpt from the linked-two story:

Three years after James B. died of Hodgkin's lymphoma, his wife Nancy gave birth to the couple's first son, who was named James in honor of his late father.

Two years later -- nearly six years after her husband's death -- Nancy gave birth to their second son, Warren.

Now, as the boys approach their first and third birthdays, their in vitro conception has raised an issue of first impression that New York's Legislature did not consider, for obvious reasons, when it first drafted the Estates, Powers and Trusts Law in the early 1960s.

Specifically, in Matter of Martin B., Manhattan Surrogate Renee Roth had to decide whether the "issue" and "descendants" provided for in seven 1969 trusts includes children conceived with the cryopreserved semen of the grantor's late son -- James B., as he is known in court papers -- whose death preceded his own sons' conception.

Surrogate Roth ruled that the grantor's intent is controlling and that, although his trusts were understandably silent on the subject, they appeared to favor inclusion of young James and Warren among his "issue" and "descendants."

"[The] instruments provide that, upon the death of the Grantor's wife, the trust fund would benefit his sons and their families equally," Surrogate Roth wrote. "In view of such overall dispositive scheme, a sympathetic reading of these instruments warrants the conclusion that the Grantor intended all members of his bloodline to receive their share."

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[Surrogate Roth] noted that the New York Legislature has addressed the same issue vis-à-vis wills: A recent amendment to the Estates, Powers and Trusts Law excludes "post-conceived" children from sharing in a parent's estate, absent a contrary provision.

That amendment, however, is "applicable only to wills and to 'after-borns' who are the children of the testators themselves," Surrogate Roth wrote. "Moreover, the concerns to winding up a decedent's estate differ from those related to identifying whether a class disposition to a grantor's issue includes a child conceived after the father's death but before the disposition became effective."

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Comments (2) Read through and enter the discussion with the form at the end
Jeffrey S. Goethe - August 3, 2007 11:20 AM

This case was discussed briefly during the August 2, 2007 meeting of the Probate Law and Procedure Committee of the RPPTL. It came up in the context of homestead issues. Section 732.4015 provides the disposition of homestead property if there is no testamentary devise,or a devise that violates Article X, Section 4 (which protects a surviving spouse and minor children.) Fortunately, Section 732.401 refers to "lineal descendants in being at the time of the decedent's death, per stirpes". I think this reflects the policy you mentioned as a guiding factor in probate law - get the estate administered and closed with finality.

Your comments also address another item to be added to the planner's checklist and another question to be asked at the client intereview: Do you want the trust to benefit children concieved and born afte your death? Section 689.225 allows trusts created after December 31, 2000 to extend the rule against perpetuties to 360 years after the creation of an interest. Imagine where family relationships and reproduction technology might be in 360 years. There will certainly be interesting issues in this area for generations to come. At the committee meeting, some very good lawyers recognized a need for legislation in this area. Until then, I agree with you that the documents must be drafted carefully and the litigators will get to sort out the unclear documents.

Juan C. Antúnez - August 3, 2007 11:37 AM

Jeff -

Excellent comment. I think you are right in that we can expect courts to look at this issue in the probate context and in the trust context differently.

Regards. Juan.

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