I think it is safe to say that the concept of “family” is a foundational principle in estate planning. I think it is also safe to say that, when asked, all of us would have a very clear understanding of what is meant by the term “family”. Unfortunately, unlike “children”, “issue” and other well-defined relationships, the word “family” is not a legal term of art. Its meaning is inevitably dependent upon the area of law in which the word is used and the purpose and intention to be fulfilled, within the facts and circumstances of the particular context.
Recently, however, with the advancement of Assisted Human Reproduction (“AHR”) the concept of family has taken on a whole new meaning. Take Vince Vaughn’s “Starbuck” character in the Delivery Man who, has a result of making 693 donations to a sperm bank during his student years (where he earned a sum of $24,255), ends up as the biological father of 533 children. What rights do (or should) these “children” have in the context of Starbuck’s estate planning? While the question is posed in the context of the comedic tale portrayed by Hollywood, the analysis and answers have potentially far-reaching implications. Implications which the law is only beginning to grapple with.
As with most legal developments, science will outpace the law. Some of the implications that flow from the developments through AHR are the following:
- those storing reproductive material ought to consider what is to be done with their reproductive material after their death;
- where a person intends to make a gift to a group of persons defined by a relationship, e.g. grandchildren, how long should executors wait before determining who is a grandchild;
- where gifts are defined by a relationship, should specific, more personal meaning be given to the stated relationship, as opposed to relying upon the genetic, legal meaning; and
- should individuals borne after one’s death that fall within the defined relationship be captured.
The foregoing is by far not an exhaustive list of issues to consider. The point of today’s blog is to simply convey that the concept of “family” is an evolving concept and one which all of us need to give consideration to as part of our estate planning.