ART Issues in Estate Planning: Why Not All Children Are Equal

Families created through assisted reproductive technology (ART) face unique and often overlooked challenges in estate planning. ART includes a wide range of family-building methods, including surrogacy, in vitro fertilization (IVF), donor eggs or sperm, embryo donation, and cryopreservation.

As these technologies evolve and become more common, the law has struggled to keep pace. Questions surrounding parentage, inheritance rights, and control of genetic material are not always clearly addressed by existing statutes. Without careful planning, these gaps can lead to unintended—and sometimes devastating—outcomes for families.

A well-drafted estate plan is essential to ensure your family is clearly defined and your intentions are honored.

Defining Your Family in Legal Terms

Traditional estate planning language—such as “children,” “issue,” or “descendants”—does not always account for modern family structures. For families formed through ART, this can create significant ambiguity.

Children born through surrogacy or conceived using donor genetic material must be explicitly identified in your estate plan to ensure they are legally recognized. Without clear language, a child you consider your own may not be treated as such under the law, potentially resulting in unintended disinheritance. Careful drafting ensures that your definition of family—not a default legal definition—controls.

Preventing Unintended Inheritance Claims

ART planning is not limited to intended parents. Donors of genetic material also face important estate planning considerations.

Without clear language, there is a risk that individuals conceived using donated genetic material could later be considered legal heirs of the donor. A properly drafted estate plan should explicitly state that offspring conceived through donation are not intended to inherit, unless that is the donor’s specific intent. Addressing this issue proactively helps prevent future disputes and protects the integrity of your estate plan.

Planning for Posthumous Children

ART makes it possible for children to be conceived after the death of a parent using stored genetic material. In North Carolina, there is limited statutory guidance on whether these children have inheritance rights, and outcomes can vary.

An estate plan can address this uncertainty by clearly stating whether posthumously conceived children are to be included as beneficiaries. This ensures both clarity and financial protection for children born under these circumstances.

Managing Genetic Material

Stored genetic material—such as frozen embryos, eggs, and sperm—presents another layer of complexity. While clinics typically require agreements addressing storage and use, those agreements may not fully resolve issues that arise after death.

Courts in North Carolina have generally treated genetic material as property, but there are no comprehensive laws governing its disposition. Including clear instructions in your estate plan regarding ownership, use, or destruction of genetic material helps prevent conflict and ensures consistency with your broader intentions.

Planning in an Evolving Legal Landscape

Estate planning involving ART requires a proactive and highly personalized approach. The law continues to evolve, and families who rely on traditional assumptions may find themselves unprotected.

At NicholsonPham, we understand the complexities of modern family building and the importance of getting these details right. Our attorneys stay at the forefront of developments in ART, surrogacy, and parentage law to help ensure your estate plan reflects your intentions and protects your family.

If you need to create or update an estate plan that accounts for assisted reproductive technology, we are here to help. Call 919-883-4900 to schedule a confidential consultation or contact us online.