Integrating IVF Considerations Into Your Estate Plan

In Vitro Fertilization, or IVF, has become an essential modern reproductive tool for all kinds of families across California and the world. However, it comes with some legal complications – especially when it comes to setting up the estate plan that will determine what happens to your property and assets when you pass away. This article aims to explain those complications and provide considerations and solutions for California families exploring IVF, including:

• What IVF is, and how it and other assisted reproductive technologies have impacted California estate planning.
• The considerations involved in the use of fertilized eggs and embryos after your death.
• The rights of posthumously conceived children and how to protect them in your estate plan.

What Are Assisted Reproductive Technology And In Vitro Fertilization?

If parents are having trouble conceiving, thanks to modern technology, they can use assistive reproductive technology to help them have a child. For those struggling with infertility or for LGBT+ couples who do not have the ability to conceive, IVF can be a miraculous solution.

In Vitro Fertilization (IVF) is a particular type of medically assisted reproduction in which an egg and sperm are collected from the willing future parents, fertilized and allowed to grow just a little in the lab before being implanted back into whomever will bear the child. (This could be you, your spouse, or a surrogate mother.) This technology allows millions of families around the world to have children when they otherwise might not be able to.

How Has Assisted Reproductive Technology Impacted Estate Planning?

Assisted reproductive technology and in vitro fertilization (IVF) are relatively new but are gaining popularity. As of 2024, IVF accounts for about 1% of births in the U.S. While this may seem like a small percentage, it has grown significantly over the last decade. The novelty and increasing popularity of IVF presents new challenges for the law, particularly in estate planning.

Some questions IVF poses for the law include:

• Should an unborn IVF embryo be included in the estate plan?
• Can your last wish give permission to a partner to use their sperm, egg, or embryo for IVF?

Some of these questions have been addressed through the court system. For example, if you leave your entire estate to your partner, this does not automatically include biological material. Their sperm, egg, or joint embryo is not necessarily available to them unless explicitly provided for in your estate plan.

Unfortunately, there are still many unanswered questions, as well as others that have only been partially answered. Therefore, if you are undergoing IVF or even just contemplating it, you should consider the estate planning implications and consult with an attorney to ensure your estate plan aligns with your IVF journey.

Attorney Rebecca Sommer is an insightful California estate planning lawyer out of Anaheim who has helped parents set up their estates to include all relevant IVF-based considerations.

As a mother who has herself gone through successful in vitro fertilization, she is doubly qualified to help you understand and manage all the estate planning elements involved.

Have you started IVF? Are you considering expanding your family with IVF? Contact The Law Office of Rebecca Sommer to understand and manage all estate planning details.

Call For A Free Assessment Of Your Needs - (657) 571-1241

How Can I Decide Whether To Allow Or Prevent The Posthumous Use Of My Eggs Or Sperm Via IVF?

IVF is a complicated subject, so there are many aspects you should carefully consider. It is perfectly normal to be confused or unsure and sensible to consult with those around you and trusted estate planning attorneys.

Many fertility clinics will provide documents for you to fill out regarding your biological material. While it’s helpful to have these forms, you are often in the midst of a complicated and stressful time with many other decisions to make. You might be on medication, have numerous doctor’s appointments, and be worried about the outcome of the IVF procedure.

Unless informed by someone or you are an estate planning lawyer, you may not realize the significance of these documents. Take the time to think about what you want and what you want your partner to be able to use (embryo, egg, sperm). Also, consider the possibility that your partner could remarry, meaning a child from your biological material could be raised by someone you have never met.

You should also consider whether to put any limitations on the use of your genetic material. For example, you might permit the use of an embryo, but only within the next two to three years. This avoids the scenario where the embryo is kept in limbo for 20 or 30 years.

These considerations may feel distant and extreme while you are at the IVF clinic, but they can, and unfortunately do, arise.

How Can I Legally Document My Wishes For The Use Of My Eggs Or Sperm After Death?

If you want to have any say over how your egg, sperm, or embryo is used after your death, your wishes need to be laid out in a legally valid estate planning document.

While clinics have introduced documentation to dictate what permissions you are giving, their validity may vary depending on how the clinic organizes the materials. Even if you have a document in place with the fertility clinic, it is wise to also have a will or trust to ensure your wishes are clear.

This is especially important if the fertility clinic only retains these documents for a limited time or if your embryos or other materials are moved to a different clinic and you cannot redo the paperwork.

Having your own legally valid documents provides greater control and personalization. However, you must ensure that your documentation is consistent. You do not want the documents on file with the clinic to conflict with your will or trust, as this could create confusion or lead to conflicts.

What Are The Rights Of Posthumously Conceived Children In California?

If a child is posthumously conceived, meaning conceived and born after your death, they do not automatically have the same rights as a child already born or in gestation. Notably, posthumously conceived children do not have the right to inherit from their deceased parent unless specific conditions are met.

To ensure such a child can inherit, a legally valid estate planning document must be signed by the deceased parent stating:

• The surviving parent has the right to use the deceased parent’s genetic material for the posthumous conception of a child.
• The designation of someone authorized to control the genetic material.
• The person allowed to control the genetic material must give notice that the material is available for posthumous conception.
• The child must be in utero within two years of the deceased parent’s death.

A posthumously conceived child must meet all these conditions to inherit from their deceased parent.

Attorney Rebecca Sommer is an insightful California estate planning lawyer out of Anaheim who has helped parents set up their estates to include all relevant IVF-based considerations.

As a mother who has herself gone through successful in vitro fertilization, she is doubly qualified to help you understand and manage all the estate planning elements involved.

Have you started IVF? Are you considering expanding your family with IVF? Contact The Law Office of Rebecca Sommer to understand and manage all estate planning details.

Call For A Free Assessment Of Your Needs - (657) 571-1241

How Can I Secure Social Security Survivor Benefits For A Posthumously Conceived Child In California?

Social Security survivor benefits can be substantial, and it’s reasonable to want your child to benefit from them, even if conceived after your death. However, there are very few cases on this topic, with one notable case from the Ninth Circuit, although it is not a California case.

This case established a two-part test for qualifying under the Social Security Administration:

1. The beneficiary must qualify as a child.
2. They must qualify as a dependent under the Social Security Administration’s rules.

To qualify as a child, there must be a legal establishment of parentage. In California, there are two different sections for this: one for if you are married and another for if you are not married.

A posthumously conceived child only qualifies for Social Security benefits if they could inherit from the deceased parent under state law (see above for the complexities involved in qualifying to inherit in California). Therefore, you must meet those requirements and have the legal establishment of parentage to receive these Social Security benefits.

Additionally, the child must qualify as a dependent. Under the Social Security Administration guidelines, to be deemed dependent, they must be:

• A legitimate child (conceived during marriage),
• The child of a deemed marriage,
• An illegitimate child (conceived outside of marriage but acknowledged in writing by the father or recognized via court order).

While multiple criteria must be met to qualify your child for Social Security survivor benefits, it is worth considering these requirements ahead of time. Social Security survivor benefits can be extensive, especially for a young child. If their benefits start when they are one year old or younger, the accumulated monthly monetary benefits can be significant.

Therefore, it is crucial to set up your documents so that if something were to happen to you, a child conceived from your genetic material after your death could receive these benefits. If you are unsure about the Social Security status of your unborn embryos, an experienced IVF estate planning attorney can help.

Can I Include Parenting Decisions And Financial Provisions For Posthumously Conceived Children In My Estate Plan?

Effective estate planning allows you to extend your wishes regarding parenting decisions and financial provisions to unborn embryos and posthumously conceived children.

One of the most straightforward methods is through guardianship documents. While your spouse or partner is likely the first choice for guardianship because they are also the child’s parent, you should also consider who will raise the child if both of you pass away.

Additionally, you can include financial provisions so that such a child can benefit from your estate, rather than restricting it to existing children or leaving it unaddressed if you have no children. You can provide for them by establishing these future provisions today.

Many people assume that every time they have a new child, they must change their trust or other estate planning documents. However, this is not necessarily true; it depends on how the trust is written and whether your goals remain the same.

If your goals are unchanged, you can have your estate plan set up to ensure your trust provides for all your children, including those born later or after your death. If that is your goal, communicate it clearly to your estate planning attorney, and they can ensure it is accommodated.

What Legal Challenges May Arise Against Assisted Reproductive Technology Considerations In My Estate Plan?

Challenges to estate plans can arise whenever there is ambiguity or contradiction. If your estate plan is unclear about how to handle unborn children, issues will certainly arise if your spouse attempts to have them.

However, these challenges are relatively easy to anticipate and manage well in advance. By working with an attorney to ensure your wishes for any genetic material and unborn children are crystal clear, you can avoid most legal challenges. Planning ahead to ensure your child receives the necessary benefits, whether from Social Security or your estate, will help secure their future.

Ultimately, the goal is to ensure that if you go through the effort and expense of IVF, those efforts are not undermined by legal weaknesses in your estate plan that could create problems for a posthumously conceived child.

By working with a professional estate planning attorney, you don’t need to understand all the complexities of IVF estate planning. We handle those details for you. What you need to know are your desires and goals. Your estate planning lawyer will then ensure those wishes are carried out and those goals are met.

Choose someone familiar with technologically assisted reproduction and IVF who can explain the pros and cons of different choices, outline the benefits certain documents provide, and ensure those documents meet all legal requirements.

For more information on Integrating IVF Considerations Into Your Estate Plan, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (657) 571-1241 today.