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Should your estate make room for frozen embryos?

When most people hear the phrase "estate plan," they usually associate the task of allocating assets, assigning executors and beneficiaries, and establishing trusts to elderly folks with money. What is actually the case is that most individuals who have assets benefit from developing an estate plan. In the past, drawing up a list of assets and property could involve cars, sentimental items, a house or money saved in a banking account.

If you have been following our blog, you know that the items that can be included in an estate plan today vary from tangible to the conceptual, located in a deposit box or an online account. Due to the law's ever-evolving recognition of what constitutes an asset, estate plans may need to be updated to reflect the variety of assets an individual possesses. The same can be said for the diverse set of beneficiaries that can be referenced in the documents that constitute an estate plan.

Such is the case for relatives of individuals who have undergone Assisted Reproductive Technology (ART). ART is an umbrella term for various fertility treatments adults seek out to have children. In many cases, prospective parents freeze embryos for future implantation. As more women are choosing to delay childbirth, their eggs or embryos put in storage are increasing at a rapid pace. According to a New York Times report, approximately one million embryos were recorded as being stored in 2015. This number is not predicted to decrease in the near future, as a few companies are beginning to offer to pay for egg storage for female employees.

It may be the case that those revising an estate plan have passed childbearing age; however, their children or grandchildren may still be able to have children. Should their descendants require fertility assistance, these are considerations that may need to be addressed in a plan:

1. Is a beneficiary considering freezing embryos?

While this is a personal question, discussing this issue can influence how an estate plan is drafted. There are specific terms that need to be included in an estate plan so that the children born through ART will not be excluded from the estate. A modification of the estate may be required in this situation.

2. What will happen to the unused embryos in the case of a death of a parent?

Should the embryos be implanted in a surrogate after a beneficiary's death, will the child born through surrogacy be considered an heir?

3. What will happen if the frozen embryos are donated?

Should the frozen embryos be donated to an unrelated couple, will the child born to this couple be considered an heir?

30 years ago, making considerations for frozen embryos may have been rare. With the increase in couples seeking out fertility treatment, however, including instructions for offspring not yet born may become as common as developing a digital estate plan. 30 years ago, allocating possession of bytes and online accounts would have been an equally rare undertaking.

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