The law is clear on one thing: when a trust document does not address the issue, Ms. Klein said, “children born with the new technology are entitled to inherit with the same rights as a natural-born child.”
Planning an inheritance? Just when you feel you've thought of all the family members you know and wish to include in your bequests, there is another type of heir to consider. The current science of fertility, preservation, and in vitro fertilization has stretched inheritance laws to new limits when it comes to determining “unknown heirs.”
The New York Times noted some of the challenges in an article titled “Fertility Treatments Produce Heirs Their Parents Never Knew.”
There was a time, not so long ago, when family lines split and branched like a tree. This was known, literally, as per stirpes in the estate law canon. Inheritance law has adhered to this concept.
Problems arise when family lines do not follow neatly branching blood ties in a one-to-one relationship. More specifically, what happens when certain kinds of fertility treatments or preservations allow “genetic material” to be preserved well past the lives of the genetic mother or father? Are these children still heirs?
The law is muddled, but generally yes.
In rich estates this means a new potential heir to lay claim to assets. In even more modest estates, this means a new eligible child for their parents’ benefits under various governmental programs.
So, how do you plan for the heir you will never know? In the first instance, it likely will all hinge on why you preserved genetic material in the first place. Many now preserve eggs prior to undergoing chemotherapy or another treatment, and some simply before menopause. Many men preserve genetic material before going to war or, likewise, just in case.
If you have preserved your genetic material, then what are your reasons for doing so? In some instances you can create a plan to protect what you would want protected. If nothing else, this is a subject with very deep and broad implications.
Reference: The New York Time (August 30, 2013) “Fertility Treatments Produce Heirs Their Parents Never Knew”