The language used in important documents may need to shift to reflect recent technology and family dynamics.
With the advent of new technologies, potential surprises at estate settling time are becoming more common. At-home DNA testing has opened new avenues of family dynamics, uncovered hidden ties and even solved family mysteries. In vitro fertilization (IVF), embryo freezing and surrogacy have contributed as well. Adoptions that may have been previously closed as a standard are now becoming open, with the ability to search and uncover records with new adoption advocacy. While those who pursue DNA technology or push to uncover their adoption records may be just searching to understand more about their roots and ancestry or even shed light on medical conditions, what and who they discover might be surprising.
In addition, new methods of family creation with IVF and donor embryos can also create future challenges. Many attorneys have not caught up with or thought about these scenarios when conducting estate planning, and the law is rapidly changing. Add the complexity of family dynamics which might include an estranged family member’s children or family, and adoption and adoptive heirs, and it’s evident that all scenarios must be clearly accounted for in order to reduce any potential discrepancies at during the administration of the estate.
When a large and potentially complex estate is at stake, complete transparency with your legal team is the best way to mitigate unknown or surprise potential heirs. It’s necessary to think through as many possible scenarios as possible and share them honestly. Even if this means sharing uncomfortable family facts, history or extramarital relationships. In the case of potential children or grandchildren conceived from donor embryos, legal steps should be taken as many states have not caught up with this legal scenario. As a tangent from this, if you have donor embryos that may still be in storage, your state will determine how you must account for them in your estate plans, in terms of both ownership of the embryos and if the embryos are used to eventually create human life. Some states regard embryos as property, others as people and if there is any potential that they become heirs, this must also be accounted for in your written documents.
Sharing all of your information with your financial advisor is a great first step. Most likely, they have dealt with a similar situation before and can assist when speaking to your legal team and organizing assets appropriately. Your will, any trusts and all other documents pertaining to your estate plan must include clear, appropriate legal language designating what is distributed to your spouse, and you can indicate that only known heirs or known children are included.
Conversely, if you do want to account for potential grandchildren you’ve never met from an estranged child, perhaps, you will need to include clear legal language around that. The bottom line is that the more specific and detailed your estate plan is, the lower the likelihood that there will be challenges and other issues that arise after your passing. Thinking through all potential scenarios in the age of advanced technologies is crucial.
Raymond James does not provide tax or legal services. Please discuss these matters with the appropriate professional.
Sources: abovethelaw.com; grundenlaw.com; absolutetrustcounsel.com; abovethelaw.com
