Last month, I sat across from a couple in my Cedar Park office who had recently completed their IVF journey. They had a healthy baby girl and still had several embryos in storage. When I asked about their plans for those embryos if something happened to either of them, they exchanged worried glances.
“We never thought about including them in our estate plan,” the husband admitted.
This scenario plays out in my office more frequently than you might imagine. While most people understand the importance of addressing their home, investments, and personal belongings in their estate plans, many overlook something incredibly personal and valuable—their genetic legacy.
Today, I want to discuss why addressing stored embryos, eggs, sperm, and other genetic material in your estate plan is not just important—it’s essential.
The Modern Estate Planning Challenge Most People Overlook
Estate planning has always evolved to address new realities. A century ago, no one worried about digital assets or social media accounts in their wills. Today, we face another frontier: the preservation and disposition of genetic material.
With advances in reproductive medicine, more Central Texans are choosing to:
- – Freeze embryos during IVF treatments
- – Store eggs or sperm before undergoing medical treatments
- – Preserve genetic material before military deployment
- – Bank DNA for future medical or reproductive use
These modern medical options create new estate planning challenges that traditional wills and trusts weren’t designed to address.
Have you ever considered what would happen to your stored genetic material if you were no longer here? Most people haven’t—but they should.
Why Your Genetic Material Needs Special Attention in Your Estate Plan
Unlike your house or car, genetic material carries the potential for human life. This creates unique legal, ethical, and emotional considerations.
Without proper planning, here’s what can happen:
Your wishes may be ignored or contested. In some cases, fertility clinics default to their standard policies if clear directives don’t exist. These policies might include discarding stored material or preventing your partner from using embryos you created together.
Family conflicts can erupt. I’ve seen painful disputes between surviving spouses and in-laws over the right to use or destroy stored embryos. These situations tear families apart during an already difficult time.
Courts might make the decisions for you. Without clear instructions, judges—not you or your loved ones—could determine what happens to your most personal biological assets.
Potential children may face inheritance complications. Children born from posthumously used genetic material face complex legal questions about inheritance rights, which proper planning can address.
Essential Components for Protecting Your Genetic Legacy
Based on my experience helping Central Texas families with this sensitive area of planning, I recommend addressing these key elements:
1. Explicitly State Your Wishes About Future Use
First and foremost, your estate plan should clearly state what you want to happen to your genetic material. Consider questions like:
- – Do you want your spouse or partner to be able to use stored embryos to have children after your death?
- – If you have stored eggs or sperm, who has permission to use them, if anyone?
- – Would you prefer your genetic material be donated for research or to other couples?
- – Under what circumstances would you want the material destroyed?
Being explicit about these wishes now prevents painful uncertainty later.
2. Coordinate with Your Fertility Clinic's Documents
Most fertility clinics and storage facilities have their own disposition forms. Many clients don’t realize that these forms may conflict with their estate planning documents—creating legal confusion.
Your estate plan should acknowledge these clinic agreements and either:
- – Reinforce the choices you’ve made in those documents, or
- – Clearly state that your estate planning documents should supersede those forms
I always recommend reviewing both sets of documents to ensure they work together seamlessly.
3. Appoint a Genetic Material Guardian or Agent
Just as you name an executor for your will, your estate plan should designate someone specifically responsible for carrying out your wishes regarding genetic material.
This role is particularly important because:
- – The person needs to understand the time-sensitive nature of these decisions
- – They should be comfortable handling medical and scientific matters
- – They must be willing to advocate for your wishes, even if faced with resistance
Choosing the right person for this sensitive role is crucial. While a spouse or partner is often selected, sometimes an independent third party is more appropriate, especially if family dynamics are complex.
4. Create Financial Provisions for Storage and Use
Preserving genetic material isn’t free. Annual storage fees can run from $500 to $1,000 or more. If you want your material maintained after your death, your estate plan should address:
- – Who will pay ongoing storage costs
- – Funds for future fertility treatments if you want your partner to use the material
- – Resources for any children that might be conceived posthumously
I often recommend a dedicated trust for these purposes, with clear instructions for the trustee on how and when to distribute funds.
5. Address Time Limits and Conditions
Another important consideration is setting boundaries around how long your genetic material should be preserved and under what conditions it can be used.
You might specify:
- – A time limit (e.g., “My embryos may be used by my spouse for up to 3 years after my death”)
- – Age restrictions (e.g., “Until my spouse reaches age 45”)
- – Relationship conditions (e.g., “Only if my spouse has not remarried”)
- – Specific procedural requirements (e.g., “Only after genetic counseling”)
These parameters help ensure your wishes are honored within the context you intended.
Legal Realities in Texas: What You Need to Know
Texas law regarding posthumous reproduction and genetic material is still evolving. This creates uncertainty that makes proper planning even more critical.
Here’s what Central Texas families should understand:
Texas inheritance laws weren’t designed with posthumous conception in mind. Without specific provisions in your estate plan, children conceived after your death using your genetic material may face challenges claiming inheritance rights.
Some fertility clinics will not release genetic material without a court order after the death of a depositor unless clear advance directives exist.
Texas law generally respects written agreements regarding the disposition of embryos between couples and fertility clinics, making it essential that these documents align with your estate plan.
Real Situations Where Planning Makes the Difference
Throughout my years of practice in Cedar Park, I’ve seen how proper planning for genetic material can prevent heartache and complicated legal battles. Consider these scenarios:
When planning works well: A client of mine specified in her estate plan that if she passed away, her husband could use their stored embryos to have children for up to five years. She unfortunately died in an accident two years later. Because her wishes were clearly documented, her husband was able to use one of their embryos to have a daughter, who is now a thriving kindergartener. The estate plan also established a trust to support this child financially.
When planning falls short: In another situation, a man had stored sperm before cancer treatment but never addressed it in his estate plan. After his death, his parents and widow disagreed about what should happen to this genetic material. The dispute ended up in court, causing additional grief and tens of thousands in legal fees—all of which could have been avoided with proper planning.
Starting the Conversation: How to Address This Sensitive Topic
I understand that discussing genetic material and posthumous reproduction can feel uncomfortable. Here’s how I recommend approaching this sensitive topic:
- 1. Start with your partner or spouse. Have an open conversation about your mutual wishes regarding stored embryos or genetic material.
- 2. Consult with your fertility clinic or storage facility. Understand their current policies and any documents you’ve already signed.
- 3. Meet with an estate planning attorney who has experience with reproductive technology issues.
- 4. Consider who you trust to make decisions about your genetic material if you cannot.
- 5. Document your wishes clearly, even if they might change later. You can always update your plan.
Remember, this planning isn’t just about you—it’s about potential future lives and the family members who love you.
Keeping Your Plan Updated as Science and Law Evolve
The field of reproductive technology continues to advance rapidly, and laws struggle to keep pace. This means your estate plan needs regular reviews to stay current.
I recommend reassessing this portion of your estate plan:
- – After completing any fertility treatment cycle
- – When changing storage facilities
- – When your relationship status changes
- – Every 2-3 years (more frequently than general estate plan reviews)
Each update ensures your plan reflects both current law and your current wishes.
Taking the Next Step to Protect Your Genetic Legacy
If you have embryos, eggs, sperm, or other genetic material in storage, now is the time to ensure it’s properly addressed in your estate plan. This isn’t something to put off until “someday”—these decisions are too important to leave to chance.
A comprehensive plan that addresses your genetic legacy gives you control over your most personal assets and provides your loved ones with clear guidance during an emotionally difficult time.
It also protects any children who might be conceived using your genetic material after your death, ensuring they have both financial support and legal recognition.
Conclusion: Your Complete Legacy Deserves Complete Protection
Your legacy isn’t just about the assets you’ve accumulated—it’s also about the genetic material that represents potential future life and family continuation. By thoughtfully addressing this often-overlooked aspect of estate planning, you ensure that all dimensions of your legacy are protected according to your wishes.
In my years of practice, I’ve found that clients experience profound peace of mind once they’ve addressed this sensitive area of planning. There’s comfort in knowing that your most personal wishes will be honored, even when you can’t advocate for them yourself.