The Birds and the Bees for Trustees

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The Birds and the Bees for Trustees

by James F. McDonough, Jr. on August 20, 2013

Today, an increasing number of children are born with assistance of advanced reproductive technology. Such children may be conceived and born years after the death of a parent. This miracle of science poses difficulties for trustees administering existing trusts and lawyers drafting new trusts.

A typical trust has a current beneficiary who receives distributions of income and principal. The issue of the current beneficiary (child) will receive the distributions upon the child’s death. If there are no issues, the interest may pass to the child’s siblings or the issue of the siblings. What happens if a child of assisted reproduction is born years after the death of the current beneficiary?

Children of assisted reproduction may result from various combinations of sperm source, egg source, birth mother and parental relationship. A common example is the posthumous child conceived by the wife using the sperm of her deceased husband. Few would argue that the child is a child of the mother. Some may question if the donor consented to a posthumous child; however, most observers would infer consent from the deposit of sperm in a clinic prior to death. How does one evaluate consent where the extraction of sperm occurs after death of the donor?

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