Modern Family Structures Raise New Issues in Estate Planning

Ryan Christine Coulson
November 21, 2017

While the pace of technological development is increasing, the ability of the law to keep up is not. These developments are having a drastic impact on the way we live, and the world is radically different today than it was just twenty years ago.
 

Part II: Assisted Reproductive Technology Creates New Challenges

While the pace of technological development is increasing, the ability of the law to keep up is not. These developments are having a drastic impact on the way we live, and the world is radically different today than it was just twenty years ago. And science is affecting us at the most basic level, that of the family.

Consider assisted reproductive technology, or ART. It began with the birth of Louise Brown in the United Kingdom. Baby Louise was the first “test tube baby”—conceived through in-vitro fertilization (IVF) in 1977 and born in 1978. Today, around 1.6% of all the babies born in the United States are conceived using ART1.But not all ART cycles (from stimulating egg production with drugs through the creation of embryos) are for immediate use. Many cycles are “banking” cycles, in which fertilized eggs or embryos are frozen for future use.

While ART is a gift for the many families that struggle with fertility issues, it can be tricky to address in legal and estate planning terms. Think about those frozen embryos and the implications. Not long ago, the Massachusetts Supreme Judicial Court considered a case in which the question was whether children who had been created after the father’s death would be treated as descendants of the father. The law as it was written did not adequately address the situation.  

When it comes to estate planning, the question of who qualifies as a descendant is very pertinent. Planners now have to ask questions that feel uncomfortable and invasive, but the answers have direct bearing on how assets are passed on. Take, for example, a family that wants to pass wealth through generations using a long duration trust like a dynasty trust. What if a child donates genetic material to someone outside the family, or a deceased child’s surviving spouse uses banked embryos. Will the children born as a result be descendants for inheritance purposes? What about children born into the family from ART methods using donated sperm and eggs? These are deep and thorny philosophical questions, and require conversations that many estate planners could never have envisioned.

Estate planners today have to make sure that they understand what their clients would want to happen with their assets under these scenarios. To the best of their abilities, they have to draft estate planning documents that will stand up in the face of future scientific developments as well. Complicating the matter even further consider that today there’s not even a uniform definition of legal parenthood for children created with the genetic material of a deceased parent.

It seems like estate planners have their work cut out for them in this age of blended families and ART. It’s important for wealth management and estate planning professionals to employ all of the tactics available to develop plans that can accommodate wide-ranging changes in the way that families are created.

To read the full article in the Summer 2017 edition of The Advisor, click here. You can also receive The Advisor in print by subscribing via our Online Preference Center or by contacting a CIBC Atlantic Trust advisor today.

Ryan Christine Coulson is a wealth strategist for CIBC Atlantic Trust Private Wealth Management's San Francisco office, with more than 12 years of industry experience. In this role, Ryan is responsible for developing integrated wealth management solutions, providing comprehensive estate and financial planning services to high net worth clients, as well as serving as a fiduciary representative for individual trusts and foundations.

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1 2015 Fertility Clinic Success Rates Report, CDC.gov