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A New Estate Planning Challenge Arises with Posthumous Births

By February 16, 2012Estate Planning

With the advances in science coming so quickly in our society, we are facing new possibilities never before dreamed of. New possibilities mean there must be planning in place to prepare for the foreseen and unforeseen complications which arise from change. Currently we are seeing a rise in posthumous births - children being born after one or more parents are deceased. With millions of sperm donor deposits and half a million embryos currently cryogenically frozen, the circumstance of posthumous births is and will continue to grow.

This poses an interesting challenge for estate planning as these children may or may not be included in the distribution of the estate depending upon state laws. Standards are still being created for such situations, and there are approximately 100 cases in court currently dealing with this exact issue. For example, one couple was having difficulty conceiving a child. When the husband was diagnosed with advanced cancer, he and his wife decided to have his sperm and her embryos cryogenically frozen so that they could attempt a child if he should pass away. The husband passed away from the cancer and the wife determined to undertake the necessary assisted reproductive steps in order to have their child. Some states are conceding that a child born within 45 months after a parent's death is entitled to their distribution of the estate. However, this ruling is rather new and is only in selective states.

How will the courts handle the situation of a posthumous child coming to lay claim on a current or already administered estate? What if they are laying claim to the portion of an estate that their biological grandparents wanted passed down to their grandchildren? The child could be determined as part of the family, or ruled as completely separate from the family, depending upon the situation and the judge's opinion.

Because there is no standard created yet for this situation, it is best to plan for this in your estate plan to ensure your wishes are carried out. This is also very important for families that may have children of same-sex unions where the children are most often not biological descendants of either of their parents.

Whether you currently have such a situation in your family, or foresee that such a situation could exist in your future, putting special language into your trust can prevent a mess in court proceedings for your loved ones. As our world changes, so too must our planning methods. We continue to watch the trends of science and society and how they affect the various areas in our lives, and the lives of our loved ones.

Why Choose Morris Hall:
You have a number of options when it comes to estate planning, so why pick Morris Hall? First off, estate planning and asset protection are a very complicated endeavor and you should only trust someone who focuses exclusively on those matters. Also, MH is a proud member of The American Academy of Estate Planning Attorneys (AAEPA) which provides us additional support, advanced training, tools and information that is not available to others - which means that we can better protect your assets and your loved ones. We are one of only two firms in Arizona that belong to the AAEPA and are the only firm in New Mexico that has been granted membership. If you have assets and loved ones that you want to protect, you are in good hands with MH. Contact us today at 888.222.1328 to schedule an appointment!

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation. 

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