James F. McDonough
Of Counsel
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This case in Topeka Kansas has been in the news since December 2012. Mr. William Marotta provided sperm for a child conceived through artificial insemination for a lesbian couple. The State of Kansas is seeking to hold Mr. Marotta responsible for child support despite the fact that Mr. Marotta relinquished his parental rights in a written agreement with the couple. The state is taking this step because the mother is no longer able to work and to support the child. [There is a motion pending to remove the Judge and the case appears to have stalled.]
There are two issues that attorneys address with clients in trust and estate planning. One issue is how property should pass in the event of the deaths of designated heirs. Would a testator or grantor of a trust consider the child in Topeka to be an heir? I am certain that other family members would object to the inclusion of a stranger as a beneficiary. This issue is not as remote as one might suspect.
The second issue is whether the interest of a beneficiary in a trust can be subject to levy or attachment in circumstances such as this. Most trust instruments have spendthrift language to block creditors from accessing trust assets. There are, however, several unanswered questions. Is spendthrift language effective against a state seeking to enforce child support? Does the child have the rights of a beneficiary or is the child only a creditor? Perhaps the trust instrument should require that the biological parent to retain parental rights before the child is entitled to distributions from the trust as an heir.
In addition to the foregoing issues, we know that a child can be conceived after the death of the sperm or egg donor. Should a parent or grandparent provide guidance for the trustee or simply rely upon the law of jurisdiction to catch up with science.
There are numerous trust and estate issues that arise from these scenarios and I am certain that we will be paying more attention to the definition of heirs, issue and descendants.
- Practices: Tax and Trusts & Estates
- Locations: Red Bank, NJ, New York City, Little Falls, NJ
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