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Modern Estate Planning Blog

Elder Law & Special Needs Planning

Sacramento Guardianship Attorney Advises Couples to Include Frozen Embryos and other Genetic Material

May 27, 2013

Children and Estate Planning – A Natural Progression

When it comes to estate planning, children are one of the biggest reasons that couples turn to a Sacramento guardianship attorney in the first place. To be fair, though, most of the time, those children have already been born into the world. What happens to the “assets” of couples who have embryos or other genetic material frozen?

Maybe a Bit Less “Natural”

Not only can embryos be cryogenically frozen, but so can sperm. The whole idea is to preserve these materials for a later date. For example, a man who is facing treatment for testicular cancer may have some of his sperm frozen so that if he chooses to have children later, he will still be able to father them genetically. Likewise, couples that have struggled with infertility and gone the route of implantation may choose to have “extra” embryos frozen for future pregnancies.

New Estate Planning Questions are Raised

There are numerous results of these practices that should be considered with a Sacramento estate planning attorney. One of these is certainly something that hasn’t had to be considered until science advanced to the point where we are now: What if a child is conceived after the death of one of his or her parents? It almost seems like a surreal question, but these are things that now require consideration.

Generally speaking, an estate planning and guardianship lawyer in Sacramento helps parents to determine how their assets will be distributed to those left behind. In the case of a child conceived “postmortem,” the estate has likely already been distributed. There’s also the question of death benefits. Does a child who didn’t exist before the parent’s death have rights to that parent’s benefits later? And even if the parents did look ahead and plan for these possibilities, what about the estates of grandparents or others to which the child might reasonably have a legal claim?

The Law Works to Keep Up with Technology

The truth is that not all of these issues are fully figured out yet. In fact, the U.S. Supreme Court is expected to hear a case where the mother of a child conceived more than a year after the father’s death has applied for Social Security benefits for the child. In many states there is a limited window in which children born after one parent’s death can be included in estate distribution.

Other states are developing laws to govern what is to become of embryos and other genetic materials that have been frozen. How these materials are to be treated varies greatly from state to state, and there are a lot of moral, not to mention religious, implications that are being addressed by the decisions being made. This will certainly be an interesting issue to continue to watch, but for those that already have genetic material frozen, the laws haven’t necessarily caught up to today’s technology.

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Very professional, comprehensive service and extremely valuable. Heather and her team are very knowledgeable and we feel they have our best interests at heart. They make uncomfortable decision conversations possible and manageable. Working with Heather we were able to focus our attention on important issues that we questioned or purposely avoided for too long. Now that these questions are answered and our family is covered, it's a wonderful feeling.

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