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Frozen Embryos and Sperm Causing Estate Planning Challenges in Colorado

Over half a million embryos and millions of sperm have been cryogenically frozen in the U.S. for the purpose of having children at a later date. Setting aside ethical and religious issues, frozen embryos, eggs or sperm give rise to many legal issues since they are usable many years after they were first frozen.

With cryogenic freezing, it is possible for children to be conceived well after a parent has died; such a child is often referred to as a “postmortem conception child.” When such a child is born, many probate and estate questions are raised:

  • How does a post-mortem conception child collect from the deceased parent’s estate if the assets were already distributed?
  • May the child collect death benefits from the deceased parent?
  • Is the child entitled to life insurance proceeds from the deceased parent?
  • If a parents dies designating that estate assets are to be equally divided among his or her children, how long does the executor have to wait to see if more children will be born?
  • Does the child inherit from his or her grandparents’ estates if they did not include such a possibility into their estate plans?

A recent case involving a woman who used her deceased husband’s sperm to conceive and give birth to a child more than a year after his death is making its way to the U.S. Supreme Court. The mother applied for Social Security death benefits on behalf of the child – based on the deceased husband’s earnings – and the claim was denied. After numerous decisions at the state court level, the case will be decided later this year.

Colorado is one of only two states that have adopted laws concerning this issue. Probate laws in Colorado allow for the automatic estate inclusion of any children born to the surviving spouse within 45 months of a married decedent’s death. This means a surviving spouse has three years to decide whether to use the frozen material.

There are many reasons someone would want or need to freeze embryos, eggs or sperm: pending cancer treatment, a progressive medical condition – such as diabetes or multiple sclerosis – that will eventually impair a partner’s ability reproduce, or a desire to delay having children.

If you have estate or probate questions, seek the assistance of knowledgeable lawyers who have experience with estate planning. A skilled attorney can help you craft an estate plan that works for your needs.