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Test Tube Babies Can Be Trust Fund Babies, Too

Technology has drastically changed the ways in which children can be conceived, and children can now be conceived in a laboratory long after one or both parents have died. Trusts and Estates law, however, has been slow to catch up, and has not always followed the scientific trend. The New York State Estates, Powers, and Trusts Law (EPTL) will only recognize a child born after its parent's death if the child was conceived during the parent's lifetime (i.e., father dies while mother is pregnant) (EPTL Secs. 4-1.1(c), 5-3.2). In fact, by a 2006 amendment, the EPTL specifically excludes children who are conceived after the parent's decease, unless there is some written evidence that the deceased intended for the after-born children to come into being (EPTL Sec. 5-3.2). However, the statute specifically applies to "children," not to any other category of descendant.

In Matter of Martin B., 2007 NY Slip Op. 27306, 841 N.Y.S.2d 207 (Surr. Ct. N.Y.Co., July 30, 2007), Martin set up trusts in the 1960s that were designed to "sprinkle" money to his "issue" and "descendants" after his wife's decease. During Martin's lifetime, his son, James, was diagnosed with Hodgkin's Lymphoma, and died. Before James died, he had some of his semen cryopreserved, with the instructions that it be used by his wife according to her discretion. Martin died shortly after James.

Several years later, James's widow, Nancy, was artificially inseminated with the semen on two different occasions, and gave birth to two sons. The question before the Court in this case was whether Martin's trusts could in the future "sprinkle" money to the two post-conceived grandsons, after the decease of Martin's widow.

The Court reviews the laws of several jurisdictions, including the District of Columbia and New York, which allow "posthumous" children to share in such a future estate, but do not specifically address the issue of post-conception. The Court then looks to the Uniform Probate Act (UPA), and the statutes of Louisiana, California, and California, which require specific steps be taken, generally in writing, to ensure that the post-conceived child will inherit. In addition, the Court points out that Massachusetts, New Jersey, and Arizona have concluded that post-conceived children are entitled to Social Security benefits.

The Surrogate concludes that the EPTL does not exclude Martin's post-conceived grandchildren, and public policy does not prevent them from inheriting. Therefore, the two children of Nancy and deceased James are "issue" and "descendants" of their grandfather for purposes of the trusts.

The Surrogate ends by sending copies of her decision to the Chairs of the State Senate and Assembly Judiciary Committees, with a call for legislation one way or another.

*Interesting celebrity footnote: the guardian ad litem for the grandchildren is listed as "Mario Cuomo, Esq." 

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