What if you have a baby six months after you die? How about two years? 20 even?

It’s not science fiction. This is modern science, and it’s only advancing. The storage and eventual use of genetic material for reproduction, even after someone dies, is a very real topic that has serious implications in the legal realm, especially estate and family planning. Our estate planning laws, many of which derive from old English law, are a bit, shall we say, dated. The topics we discuss here today aren’t entirely settled law and likely won’t be for quite some time. However, if you and your partner or family are considering storing your genetic materials, it’s time to make a long-term plan for everyone’s future security. 

In other words, if you’re at the point in your life, emotionally and financially, to do long-term family planning, then you’re ready to ensure everyone is protected legally. It’s the responsible thing to do, and we’ll help you cover the basics. 

First, what the heck is an “ART baby,” and why does it matter for your estate plan?

Understanding ART and Its Impact on Modern Families

Assisted Reproductive Technology, commonly shortened to ART (but not that kind of art, but don’t we all want artists in the fam?), refers to medical procedures used to help folks conceive children outside of traditional reproduction, according to the Centers for Disease Control and Prevention (CDC). This includes in vitro fertilization (IVF), frozen embryos, frozen sperm or eggs, donor genetic material, and surrogacy. What makes ART different from past fertility treatments is not just how common it has become over the last decade, but how far it can extend the timeline of family creation.

For the first time in history, someone can legally become a parent after they have died. Like, well after they’ve died.

A child could be conceived months or even years after one parent’s death using stored genetic material. In some cases, embryos created during a marriage may be implanted long after one spouse has passed away. These children are very real, very intentional, and deeply wanted. But legally, they raise questions our estate planning system was never designed to answer.

Traditional estate planning laws assume a fairly simple sequence of events. You are born, you live, you have children, and then you die. ART breaks that sequence. When children can be conceived after death, the law struggles to determine who counts as an heir, when an estate should close, and whether assets were meant for children who did not yet exist at the time of death.

Modern families are also more diverse than the legal templates most estate plans rely on. ART is frequently used by same-sex couples, single parents by choice, blended families, and people who delay parenthood for medical or personal reasons. Without careful planning, estate documents that rely on vague phrases like “my children” or “my descendants” can create confusion, conflict, or unintended disinheritance.

So what exactly is an “ART baby”?

In simple terms, an ART baby is a child conceived using assisted reproductive technology, which may involve frozen embryos, frozen sperm or eggs, donor genetic material, or surrogacy. In some cases, that child may be conceived after one parent has died. In others, the genetic connection may not align neatly with legal parentage unless it is clearly documented.

That distinction matters. A lot.

Case Study Review: Astrue v. Capato, 566 U.S. 541 (2012)

Karen Capato’s husband, Robert, froze his sperm before cancer treatment, then died in Florida. Eighteen months later, Karen used IVF to conceive and gave birth to twins, and she applied for Social Security survivors’ benefits on their behalf. The Social Security Administration said no: under the Social Security Act, a child generally qualifies for survivors’ benefits only if the child could inherit from the deceased parent under the intestacy law of the state where the parent lived at death. Florida’s intestacy law does not treat posthumously conceived children as heirs unless they were conceived during the parent’s lifetime (or specifically provided for in a will), so the SSA denied benefits. A federal appeals court reversed, reasoning that because the twins were Robert’s undisputed biological children, they qualified as his “children” under the Act without needing to meet state intestacy rules.

The U.S. Supreme Court unanimously reversed the appeals court and sided with the SSA. The Court held that the SSA’s interpretation fits the statute’s design: survivors’ benefits are primarily meant for children who were dependent on the wage earner during life, and using state intestacy law is Congress’s way of drawing a workable line without forcing case-by-case family determinations. The Court also noted the practical problem with the alternative rule: without intestacy-based limits, benefits could extend to children conceived many years after death, with no clear time boundary. Bottom line: biology alone was not enough here; when it comes to federal survivor benefits, posthumously conceived children generally have to pass through the state intestacy “gateway,” which makes proactive estate planning and clear written consent documents especially important for families using stored genetic material.

Posthumous Conception and Inheritance Rights

Not long ago, the idea of having a child after a parent’s death would have sounded like pure science fiction. Today, it is simply science.

Through assisted reproductive technology, embryos, sperm, and eggs can be preserved for years. That means a child may be conceived months or even years after one parent has passed away. These are not accidents or surprises. In most cases, they are the result of deeply intentional family planning.

The law, however, has not fully caught up to that reality.

Estate plans are typically written with a clear timeline in mind. Someone dies, their estate is settled, and their assets are distributed. Posthumous conception challenges that order. If a child does not exist at the time of death, but is clearly intended, where do they fit when it comes to the family tree and estate plan?

That question can feel uncomfortable, but avoiding it does not make it go away.

Legal Status of Posthumously Conceived Children

Here is where families often run into trouble. The inheritance rights of posthumously conceived children vary widely depending on the state.

Some states allow inheritance if a child is conceived or born within a specific time after death. For example, California law requires that the child be conceived (in utero) within two years of the issuance of the death certificate (or court acknowledgment of death) (California Probate Code § 249.5 (2024)). Others require written consent from the deceased parent stating that their genetic material may be used and that any resulting child should be included as an heir, such as in Connecticut. Some states offer little guidance at all.

Without clear planning, a child who was absolutely wanted can be legally excluded. Not because anyone intended that result, but because the documents never anticipated it. The law is the law, and sometimes the courts have little to no wiggle room when it comes to what’s written.

Courts do not decide based on what feels fair. They decide based on what is written.

That is why clarity matters so much in this space.

Cryopreserved Embryos and Genetic Material in Estates: What Happens to Frozen Embryos and Gametes?

Frozen embryos and genetic material occupy a strange legal middle ground. They are not quite property in the traditional sense, but they are not automatically treated as children either. Most fertility clinics require agreements that address what happens to stored genetic material in various situations, including death. These agreements are important, but they are not estate plans. They are designed for medical and administrative purposes, not inheritance questions or long-term family outcomes.

When those agreements are not aligned with wills and trusts, confusion follows. And confusion, in the legal world, is expensive.

Good planning brings these pieces together. Estate plans can include clear intent statements about whether genetic material may be used after death, by whom, and under what conditions. Trusts can be structured to account for children who may be conceived in the future, even far into the future, if that’s your choice. Someone can be named to manage storage decisions and costs, though this requires careful and thoughtful planning by you and your attorney.

This is not about controlling the future. It is about giving your loved ones guidance instead of leaving them with unanswered questions.

Defining “Family” for Estate Planning Purposes

Words like “my children” or “my descendants” feel simple and warm. They are meant to be inclusive. In the age of ART and widespread DNA testing, they can also be unintentionally vague.

ART can create family relationships that are biological, legal, both, or neither, depending on how things are documented. Without careful drafting, an estate plan may include people the creator never anticipated or exclude people they deeply cared about.

This is not a failure of modern families. It is a failure of outdated language. Remember, we said that estate planning law in the US is largely derived from old Engligh law. Outdated.

Thoughtful estate planning today uses clearer definitions. It names people when appropriate. It explains who is included and who is not. It acknowledges timing and intent.

Done well, this kind of drafting is not cold or technical. It is personal. It reflects how families actually work, not how the law once assumed they did. It’s just modern life. Simple as that.

Surrogacy and Parentage Issues

Surrogacy introduces another layer of complexity, especially because parentage laws differ from state to state. A person may be a biological parent but not yet a legal one, depending on the timing and location of the birth.

From an estate planning standpoint, legal parentage matters. If parentage is not clearly established, inheritance rights can be uncertain at exactly the moment a family needs clarity the most.

Coordinating estate plans with surrogacy agreements and parentage orders helps prevent gaps that no one intended and no one wants to litigate later.

Practical Steps for Estate Planning in the ART Era

Modern estate planning does not require predicting every possible future. It requires acknowledging the futures that are realistically on the table. This means:

1. Updating wills and trusts to address ART-conceived and posthumous children directly. 
2. Reviewing beneficiary designations that may sit outside the estate plan. 
3. Executing clear consent documents for stored genetic material. 
4. Coordinating estate planning with reproductive and family law considerations.

The goal is not perfection. The goal is preparation, and the best way to be prepared is to work with an estate planning lawyer with experience and passion for this specific topic.

Common Mistakes and How to Avoid Them

Most problems in this area come from reasonable assumptions:

• Assuming traditional definitions of “children” still apply. With the rise of Assisted Reproductive Technology (ART), the legal definition of “child” or “issue” in estate planning documents can become complex. Relying solely on traditional definitions may unintentionally exclude children conceived through methods like IVF, surrogacy, or those born after a parent’s death, potentially leading to costly litigation and disputes among beneficiaries.
• Relying only on fertility clinic paperwork. While fertility clinic consent forms and contracts are essential for the medical process, they typically do not satisfy the legal requirements for estate planning. These documents are not a substitute for a comprehensive will, trust, or specific agreements that address the disposition of cryopreserved materials and the inheritance rights of any resulting children.
• Leaving decisions for “later.” Procrastinating on legal documentation related to ART and estate planning can create significant legal voids, especially in the event of unforeseen death or incapacitation. A lack of clear, legally binding instructions regarding genetic material and future children leaves crucial, highly personal decisions to the courts or family members, who may not know or agree on the deceased’s true wishes.
• Believing loved ones will figure it out. It is a common but dangerous assumption that family members will unanimously agree on sensitive issues like the use of a deceased person’s genetic material or the inheritance rights of posthumously conceived children. Without explicit legal instructions, loved ones may find themselves in protracted court battles, leading to emotional distress and the depletion of the estate’s assets.

When In Doubt, Seek Legal Out (Plan Forward Legal, That Is)

Assisted reproductive technology has changed how families are created. Estate planning must change with it. In fact, assisted reproductive technology and estate planning go hand-in-hand. When plans reflect modern realities, they do more than distribute assets. They protect intentions, reduce conflict, and honor the people who matter, including those who may not yet exist.

You do not need all the answers today. You just need a plan that asks the right questions. If you have any additional questions about estate planning and assisted reproductive technology, and if we have a Plan Forward Legal office in your state, we’d love to help. Feel free to reach out through our contact form or phone.

From the Desk of Victoria Lozano, Esq.