Facebook and Apple to Pay for Female Employees to Freeze Eggs – Some Estate Planning Considerations

October 27, 2014 Ian Hull Estate Planning, Wills 0 Comments

Within the recent past, the success rates and popularity of conceiving a child through Assisted Reproductive Technologies (“ART”) have increased significantly. Technological advances now make it possible for genetic materials to be frozen and preserved for decades, before being thawed for use in the conception of children.

Both Apple and Facebook have recently announced that they will cover the cryopreservation of unfertilized eggs for female employees as part of their benefits plans. These announcements raise novel estate planning considerations for the female employees who will be freezing and preserving their eggs.

Today’s technology allows the frozen eggs to survive the individuals from whom they were obtained. Accordingly, the wills and trusts of the female employees seeking to utilize this option may need to be updated to anticipate and address issues arising from the potential use of the frozen eggs after their death.

First, the individual’s will or trust should be updated to specify whether the frozen eggs are to be destroyed, used by a spouse, partner or parent, or donated.  If they are to be used by a spouse, partner or parent, the female employee may also need to consider to what extent a child subsequently conceived through the use of her preserved egg(s) after her death are to receive a share of her estate. If not properly considered the child subsequently conceived could be inadvertently disinherited by the terms of an existing will.

In addition, it might be necessary to consider potential impacts this later use of the preserved eggs could have on the administration of her estate. The mere existence of the frozen eggs has the potential to create significant delays to the administration if a portion of her estate must be set aside for this later conceived beneficiary. In some US States they have legislated notice periods, within which the spouse who intends to use preserved genetic materials must communicate their intention in order to prevent such delays to the estate administration.

In British Columbia, the Wills, Estates & Succession Act sets out that a posthumously conceived child can inherit as if he or she had been born in the lifetime of the deceased person if the surviving spouse or person in a marriage-like relationship with the deceased at the time of death gives notice to the personal representative, beneficiaries, and intestate heirs that the person may want to use reproductive material of the deceased to conceive.  The child must be born within 2 years from the death (or longer, if extended by the court) and survive for at least five days.  The deceased parent must also have given consent in writing to the use of his or her reproductive material after death. Ontario’s Succession Law Reform Act does not address this issue.  The federal Assisted Human Reproduction Act also provides that no person can use reproductive material or remove it from the donor’s body after death unless the donor has given written consent.

These are some of the many estate planning considerations individuals should be mindful of when seeking to use this technology. It should be noted that the legal issues created by the use of ART are arising with increasing frequency, we’ve previously blogged on related issues here and here. As the technology and its use is still relatively new, the law in this area is still developing. It will be interesting to see how the law develops over the coming years with the increasing use, no doubt encouraged by the benefits inclusion recently incorporated by Facebook and Apple.

Thank you for reading,

Ian Hull

Reminder:  Simplified Procedures for Small Estates Focus Group – November 4, 2014

The LCO in conjunction with Hull & Hull LLP have arranged a focus group for November 4, 2014 from 2:30 PM until 4:30 PM, at Hull & Hull LLP, 141 Adelaide Street West, Suite 1700, in Toronto (and not from 1:00 – 4:00 as previously advertised). Our recent blogs which outline the proposed simplified procedures can be viewed here and here. Call in access is available, and anyone interested in participating can contact Amanda Rodrigues at arodrigues@lco-cdo.org. We encourage you all to participate!

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