Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

The Birds and the Bees for Trustees

Author: James F. McDonough

Date: August 20, 2013

Key Contacts

Back

Today, an increasing number of children are born with assistance of advanced reproductive technology. Such children may be conceived and born years after the death of a parent. This miracle of science poses difficulties for trustees administering existing trusts and lawyers drafting new trusts.

A typical trust has a current beneficiary who receives distributions of income and principal. The issue of the current beneficiary (child) will receive the distributions upon the child’s death. If there are no issues, the interest may pass to the child’s siblings or the issue of the siblings. What happens if a child of assisted reproduction is born years after the death of the current beneficiary?

Children of assisted reproduction may result from various combinations of sperm source, egg source, birth mother and parental relationship. A common example is the posthumous child conceived by the wife using the sperm of her deceased husband. Few would argue that the child is a child of the mother. Some may question if the donor consented to a posthumous child; however, most observers would infer consent from the deposit of sperm in a clinic prior to death. How does one evaluate consent where the extraction of sperm occurs after death of the donor?

How does a trustee evaluate the circumstances of a childless couple that uses reproductive technology to conceive a child. If the sperm and egg are from the husband and wife and in vitro fertilization occurs, one would expect the child would be a child of these parents. What if the sperm, the egg or both were donated by third parties? Clearly, the intent of the husband and wife to treat the child as their own should control. What if the husband did not want a child and the wife is impregnated with the sperm of an unrelated donor? Should the trustee recognize the child if the wife is an in-law or should the trustee assume the child is of the marriage?

To properly administer a trust, the class of persons who will succeed to the income and principal distributions must be determined. In trust parlance, the class of beneficiaries must close. If assisted reproduction can occur years after the death of the child, it may be difficult to close the class and effectively administer the trust.

Most parents and grandparents would include an adopted child as part of the class of beneficiaries. Parents and grandparents should ask themselves whether they intend to limit successors to issue having genetic material from blood-relatives. The treatment of same-sex couples should also be considered as it is possible that one or more of these relationships may be encountered in the future. Finally, if there is to be a further division into shares upon the death of a beneficiary, how long must a trustee wait until closing the class of beneficiaries.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
Scarinci Hollenbeck Expands NYC Real Estate and Litigation Practices ADDING four litigators post image

Scarinci Hollenbeck Expands NYC Real Estate and Litigation Practices ADDING four litigators

NYC Real Estate and Litigation Attorney Ryan O. Miller and Team Join Scarinci Hollenbeck, LLC New York City, NY – August 13, 2025 – Scarinci Hollenbeck, LLC has strengthened its Real Estate and Litigation practices with the addition of four New York City-based attorneys. Ryan Miller, who joins as a partner, is well known for […]

Author: Scarinci Hollenbeck, LLC

Link to post with title - "Scarinci Hollenbeck Expands NYC Real Estate and Litigation Practices ADDING four litigators"
What is Business Law and Why Is it Important? post image

What is Business Law and Why Is it Important?

Business law plays a critical role in nearly every aspect of running a successful enterprise, from negotiating a commercial lease to drafting employee policies to fulfilling corporate disclosure obligations. Understanding what is business law and your legal obligations can help your business run smoothly and build productive relationships with clients, business partners, regulators, and others. […]

Author: Dan Brecher

Link to post with title - "What is Business Law and Why Is it Important?"
Corporate Transactions: Best Practices for Successful Deals post image

Corporate Transactions: Best Practices for Successful Deals

Corporate transactions can have significant implications for a corporation and its stakeholders. For deals to be successful, companies must act strategically to maximize value and minimize risk. It is also important to fully understand the legal and financial ramifications of corporate transactions, both in the near and long term. Understanding Corporate Transactions The term “corporate […]

Author: Dan Brecher

Link to post with title - "Corporate Transactions: Best Practices for Successful Deals"
How to Conduct a Fair and Legal Employee Termination in 2025 post image

How to Conduct a Fair and Legal Employee Termination in 2025

Ongoing economic uncertainty is forcing many companies to make tough decisions, which includes lowering staff levels. The legal landscape on both the state and federal level also continues to evolve, especially with significant changes to the priorities of the Equal Employment Opportunity Commission (“EEOC”) under the Trump Administration. Terminating an employee is one of the […]

Author: Angela A. Turiano

Link to post with title - "How to Conduct a Fair and Legal Employee Termination in 2025"
Admin Dissolution for Annual Report: What You Need to Know post image

Admin Dissolution for Annual Report: What You Need to Know

While filing annual reports may seem like a nuisance, failing to do so can have significant ramifications. These include fines, reputational harm, and interruption of your business operations. In basic terms, “admin dissolution for annual report” means that a company is dissolved by the government. This happens because it failed to submit its annual report […]

Author: Dan Brecher

Link to post with title - "Admin Dissolution for Annual Report: What You Need to Know"
What Is Antitrust Litigation Law? post image

What Is Antitrust Litigation Law?

Antitrust laws are designed to ensure that businesses compete fairly. There are three federal antitrust laws that businesses must navigate. These include the Sherman Act, the Federal Trade Commission Act, and the Clayton Act. States also have their own antitrust regimes. These may vary from federal regulations. Understanding antitrust litigation helps businesses navigate these complex […]

Author: Robert E. Levy

Link to post with title - "What Is Antitrust Litigation Law?"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. You can reply STOP to opt-out of further messaging.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!