Taking the time to consider your estate plan can sometimes be a daunting and emotional task.
If you have cryogenically-preserved eggs, sperm, embryos, or similar genetic material, the estate planning process can be complicated, but all the more necessary. Nevertheless, there are some basic things to consider when coming up with an appropriate estate plan.
First, consider what documents you may need.
Generally speaking, every person should have a Will, Power of Attorney for Assets, and Power of Attorney for Healthcare. An individual with frozen genetic material should consider how each document can affect their estate plan during and after their life.
A Will is a statement of testamentary intent regarding property owned by a person after their death.
Property that is distributed by a Will is known as probate property. When a person has a right to control frozen genetic material, the Will should presume that such genetic material is probate property and establish how that material should be handled upon death.
Cryogenic freezing clinics will often allow a donor to designate how genetic material should be handled after death.
When freezing sperm and eggs, individual donors may be permitted to make decisions in the donor contract, and it is important to make sure that your Will is consistent with designations in the agreement. With respect to frozen embryos, two parties will often be asked to designate what should happen with the embryos after the death of one or both donors. Again, each donor should be sure that their individual Will is consistent with their contractual decisions. If you did not elect what should happen to your genetic material in the clinic agreement, it is even more critical that you make your intention known in your Will.
Other documents, such as a Power of Attorney for Assets and Power of Attorney for Healthcare, can provide other benefits by appointing an agent to act on your behalf.
If you have frozen genetic material, you may consider adding provisions to your Power of Attorney to specifically permit your agent to make decisions about how to handle your genetic material while you are living, but unable to act.
Without the right documentation, a Court may review the intent provided in your clinic documents, which may not necessarily guarantee your preferred outcome. If you do not address your intent by Last Will and Testament and you are no longer here or able to make decisions, a Court may be making a decision on how your gametes or embryos will be used which could create a dispute by a spouse/partner or between family members.
Therefore, if you have frozen eggs, sperm, or embryos, it is important to take the time to consult with an attorney about crafting an appropriate estate plan for your individual needs.
heARTbeat is a publication of KingSpry’s Adoption Law and Assisted Reproductive Technology Law Practice Group. It is meant to be informational and does not constitute legal advice.
