Sure you have a Will, but do you have a Genetic Will?

Over the decades, substantial advances in medicine and biotechnology have taken place, which now make it possible for individuals to conceive biological children from stored sperm or eggs even after a parent has died.  Owing to its cost and uncertainty, this isn’t something that occurs with great frequency, but it is sometimes pursued when a couple wishes to have a child (or more children) but one of the parents is dying of a terminal illness.  After the parent’s death, a true biological child of that person might successfully be born, but is that baby a legal child of the deceased parent?

Although there have been extremely few cases dealing with this question (apparently only one in New York: Matter of Martin B., 17 Misc.3d 198, 841 N.Y.S.2d 207 (Sur. Ct. New York Co. 2007)), the New York State Legislature felt it was a compelling problem that needed to be solved.  In which case, in 2014, the State passed and enacted several revisions to our Estates, Powers, and Trusts Law to provide clarification of who qualifies as a “child” of a pre-deceased parent.  Most important of which is the new §4-1.3, which provides that “a genetic child is the child of his or her genetic parent or parents and … is an [heir of the genetic parent] … if it is established that:” the genetic parent made a written directive about his or her stored genetic material within 7 years of his or her death, which “expressly consented to the use of his or her genetic material to posthumously conceive his or her genetic child, and authorized a person to make decisions about the use of the genetic parent's genetic material after the death of the genetic parent…”

This is what I would call a “Genetic Will”.  It is a separate written directive from one’s Will, and necessitates fewer formalities than an actual Will, but it is similarly one’s posthumous directive on how certain items (his or her genetic material) may be used after death, and by whom.  In fact, a person’s Will (even subsequent to the making of a “Genetic Will”) cannot alter or revoke a provision in the “Genetic Will”.  The legislation includes a sample form for people to use, but if a couple (married or otherwise) is contemplating needing this kind of directive, they should seek the advice of an estate planning attorney.

That’s because, for a posthumously-conceived child to be considered the legal child and heir of a deceased person, the following minimum (and somewhat complicated) steps need to be taken:

(1)  The deceased parent signed and dated a “Genetic Will”:

a.     Which sets out his or her consent for the conception of a child from his or her genetic material after death;

b.     Which specifies the name and address of a “custodian” of the genetic material;

c.     In the presence of at least 2 independent adult witnesses, who also sign the document;

d.     Within 7 years before his or her death.

(2)  After the parent’s death, the “Genetic Custodian” notifies the deceased person’s executor within 7 months of the opening of an estate that there is genetic material available for the conception of a posthumous child of the deceased person.

(3)  The “Genetic Custodian” records the “Genetic Will” in the Surrogate’s Court within 7 months of the parent’s death.

(4)  A child is conceived no more than 2 years after the parent’s death;

(5)  The child is born no more than 33 months after the parent’s death.

As you can see, although this new process provides some latitude for the inheritance of a posthumously-conceived child, it is far from a perfect system.  First, for estate executors faced with a “Genetic Will”, it can cause further frustration and delay in calculating each person’s share in an estate.  If there are 3 living children, but one or two (or three or more!) children could be conceived within 24 months after the parent’s death, the estate cannot be finalized and settled before the executor knows for sure what each child’s share will be.  Furthermore, if a posthumously-conceived child is born more than 33 months after death, he or she would still not be an heir to the deceased parent even under this new legislation.  The cutoff date of 33 months seems just as arbitrary as the cutoff date of death, or 9 months after the date of death.  Under our existing estates laws, any child conceived before a parent’s death (and born thereafter), would be considered an heir of that parent; but now there is a distinction made between those children conceived and born within 2 – 2 ¾ years after a parent’s death, and those children conceived and born within 2 years and 10 months of their parent’s death.

The challenges apparent in this new statute are still largely hypothetical (since so few of these situations arise), but as medical technology advances, and costs and risks of this technology decrease, we might someday be faced with a number of posthumous, genetic heirs, along with their less-advantaged younger genetic siblings.