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Why Estate Planning Is Crucial If You & Your Partner Are Pursuing IVF


As technological advances improve, and more and more couples wait to start a family, more also rely on assisted reproductive technology, such as IVF, to conceive. In fact, according to the US Society of Assisted Reproductive Technology, between 1987 and 2015, approximately one million children were born using assisted reproductive technology, indicating just how popular these methods are.

Yet with these technological innovations can sometimes come legal complications if the law is struggling to keep up, and isn’t always written in accordance with what makes sense in terms of the science. That is unfortunately the case for children born from IVF after one parent has passed, as, in accordance with the way that Florida’s law is currently written, they are denied any estate benefits from that parent unless explicitly provided for in their will, as we discuss below.

Problems with Florida’s Determination of Parentage Law

Florida’s Determination of Parentage law states that a child conceived from the eggs or sperm of someone who passed before these materials were transferred to their mother’s body (i.e. via cryopreservation, where the eggs are fertilized using IVF and develop over several days before they are frozen and stored, and one day possibly thawed and transferred into the woman’s body) is not eligible for a claim against the decedent’s estate unless they have explicitly been provided for in the decedent’s will. This creates issues regarding inheritance rights for children born as the result of IVF after the death of a parent, particularly when that parent died intestate.

Florida’s Probate Code

The law also arguably does not make sense given the way that Florida’s probate code is written and the way that IVF and freezing embryos works. Florida’s probate code states that after born heirs who are conceived before a decedent dies, but born after, inherit intestate property in the same way as if they had been born during the decedent’s lifetime.

Given the way that cryopreservation works, many would argue that the law is out of sync with science, as, technically, the child is conceived once that the egg is fertilized, the embryo becomes viable, and is then frozen and stored; not once that it is transferred to the woman’s body. In addition, given that that decedent chose to pursue IVF in the first place, indications are that they meant to have a child during their lifetime and, therefore, as a matter of public policy, that child’s inheritance rights should be protected in the same way that they would had the child been born ‘naturally’ during the decedent’s lifetime.

Florida Courts Deny Children Born of IVF Inheritance Benefits If One Parent Dies Intestate at A Specific Point in Time

Regardless, Florida courts have pointed to the state’s Determination of Parentage law to deny benefits to these children, indicating that unless and until the Florida legislature directly addresses the issue, it is imperative that any couples who successfully complete embryo cryopreservation (or freezing of their viable embryos) must immediately engage in estate planning in order to ensure that any children that result – including those potentially born after they pass  – are not denied those inheritance benefits that they would otherwise want for them.

Our Florida Estate Planning Attorneys Can Help You with Any Questions or Concerns Regarding Your Will and Providing for Your Children and Their Inheritance

Dying without a will in Florida means that your estate is distributed pursuant to what Florida’s law of intestate succession dictates, which may or may not be in accordance with what you deem to be moral and fair. Consult with a Orlando estate planning attorney from Gierach and Gierach, P.A. today to ensure that, instead, you have a plan in place to provide for your loved ones in accordance with your personal wishes.






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