The technological advancements in biotechnology will undoubtedly create new situations that challenge traditional estate planning practices. These effects aren’t common, but we start to see them in different situations all across the country.
These previously unimaginable events, such as Ted Williams’ cryogenic freezing and the birth of children many years after his death, must be dealt with by trust or probate law.
This article will discuss a particular issue that was raised in New York State and New Hampshire cases, but which was resolved differently in each state.
Is a posthumously conceived baby a “descendant of the deceased genetic father?”
In the Matter of Martin B, a severely ill father donated his sperm to his wife so she could have a child after he died. The father died, and the wife later had the baby.
An ancestor of the father who died had created a trust. This trust was created for his “descendants.”
The court ruled that posthumously conceived children were a legitimate descendant, and thus entitled to all rights of natural born descendants.
This ruling would be accepted by most. Other states, however, have come to a different conclusion.
In a New Hampshire case called “Khabbaz. v. Commissioner,” it was ruled that a posthumously conceived child is not an heir under New Hampshire’s intestate succession law. Intestate succession refers to the state-law method of distribution if there is not a will.
New Hampshire’s case involved a genetic dad who died from a terminal illness but donated semen to a sperm bank. After the death of his father, artificial insemination was used to achieve conception.
New Hampshire’s Supreme Court ruled that the child was not legally heir to the father.
This was due to the fact that the child was not alive or conceived at time of father’s passing.
In these two recent decisions, the courts in two states reached opposing conclusions about the legal issue.