Dealing With Frozen Genetic Material When Planning Your Estate

Modern science has created some situations that never had to be dealt with before–including deciding what happens after someone's death to their frozen genetic material, such as sperm, eggs, and embryos. How do you plan for something like this in a will?

What's the legal status of the genetic material?

One thing that has to be addressed when planning a will is the legal status of the sperm, eggs, or embryos. Depending on where they are stored, there may be a contract that specifically addresses the ownership of the frozen material (the donor, the husband, the wife, or the couple in equal shares). Some contracts specifically designate who gets to decide what happens to the genetic material in the event of death or divorce, and some provide for the destruction of the material after a certain time.

All of this has to be reviewed by your attorney carefully when you are preparing your estate documents. Make sure that you take any paperwork from the clinic or storage facility where the genetic material is stored with you for your consultation. That way your attorney can advise you about your legal rights and obligations in regard to the material.

What do you want done with the genetic material?

If what happens to the genetic material ends up being largely your decision, there are at least two things that you have to prepare:

  • a durable power of attorney that addresses the genetic material and gives your representative the right to arrange for their continued care or eventual destruction if you are incapacitated

  • a will that dictates what you want to have happen to the genetic material if you die prior to its use or destruction

You will have to decide whether you will allow the genetic material to be used after your death for fertility purposes with your intended partner. Alternately, you'll have to decide to either give the material away for use by others or have it destroyed.

What happens in the event of any heirs conceived after your death?

Another possibility that has to be accounted for is how any heirs, conceived through the use of the genetic material after your death, are treated in your will. Again, state laws are going to be an important consideration. For example, in Colorado, a child born to a surviving spouse within 45 months of married person's death is automatically included in the estate of the deceased parent. Most other states, however, lack such clear regulations.

Regardless of the reason that you have frozen genetic material in storage, you want to make sure that you talk to an attorney in order to prepare for all potential possibilities. Contact an attorney at places like the Law Office of Shelli Wright Johnson for more assistance.