The technology that can aid people in having children has advanced in leaps and bounds over the past few decades. While this has been a boon to many couples who might not have ever been able to reproduce otherwise, it can also cause trouble in some instances when people are attempting to create a viable estate plan.
As is often the case, the law has not always kept pace with the technological change. While there has been precedent with regard to children conceived prior to a father's death, but born posthumously, there are not currently laws in all states to address other consequences of assisted reproductive technology. However, with the ability to now preserve genetic material by various methods, including the freezing of sperm, it is now possible for a child to be conceived from a father's genetic material after that individual has died. This fact has caused numerous estate disputes, one of which arose in Florida and led to the 2012 U.S. Supreme Court decision in Astrue v. Capato. In short, that case decided that the posthumously conceived children involved were not eligible for social security benefits because Florida law only provided for children specifically mentioned in a will.
When couples are discussing their estate planning goals, they should keep in mind that writing a will involves much more than just deciding how property is distributed. The way a will is written, executed and who is mentioned in it are all important considerations. This is especially true in cases where assisted reproductive technology may come into play. To ensure that all offspring are provided for, couples should always make finding out how the specific law in their jurisdiction will affect any estate planning documents a priority. Life brings all kinds of surprises, but when building an estate plan, the fewer surprises heirs have to deal with, the better.
Source: Palisades Hudson Financial Group LLC, "How Reproductive Advances Affect Financial Planning," ReKeithen Miller, May 20, 2013