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Post-conceived children have equal rights as natural child to benefit from a trust. In re Martin B., 17 Misc.3d 198 (N.Y. Misc. 2007)


The trustees managing seven trusts executed by Martin B. in 1969, filed request that the Surrogate’s Court, New York County provide direction on distribution of trust assets to post-conceived children of Martin B.’s deceased son, James.  The court was asked to construe the terms “issue” and “descendants.”

The grantor of a trust died on July 9, 2001, survived by his wife Abigail and their son Lindsay, but predeceased by his son James, who died of Hodgkins lymphoma on January 13, 2001. James, however, after learning of his illness, deposited a sample of his semen at a laboratory with instructions that it be preserved and that, in the event of his death, it be held subject to the directions of his wife Nancy.

Nancy gave birth to two sons, James Mitchell and Warren, 3 and 5 years later. Both children were conceived with James’ sperm. All of the remaining sperm have since been destroyed. Martin B. died on July 13, 2001, and his trusts give the trustees discretion to distribute some of the trust assets to the “issue” and “descendants” of Martin B during the lifetime of his widow, Abigail. The trustees sought guidance from the court regarding whether James Mitchell and Warren, as post-conceived children, qualify as “issue” and “descendants” entitled to receive distributions of trust assets.

Absent an expression of specific intent in the governing instrument, the intent of the transferor as interpreted from a reading of the instrument, controls. Unless not consistent with the transferor’s intent as expressed in the instrument, children post-conceived with the consent of the deceased parent are entitled to the same treatment as natural children conceived during the decedent’s lifetime.

Existing statutes only address the rights of posthumous children conceived during the decedent’s lifetime, so this court looks to the decisions of other jurisdictions that have balanced the different interests involved. The rights of post-conceived children, the need for finality and certainty in the administration of estates, and the interest of the deceased parent in having children have been balanced by requiring written consent for the posthumous conception and a limited timeframe in which the conception must occur. Similarly, the Restatement of Property suggests that post-conceived children should be treated the same as natural children unless there is an indication that the transferor intended otherwise.

Although James probably assumed that any children born as a result of the use of his preserved semen would share in his family’s trusts, his intention is not controlling here. For purposes of determining the beneficiaries of these trusts, the controlling factor is the grantor’s intent as gleaned from a reading of the trust agreements.  The trusts provide that, upon the death of the grantor’s wife, the trust fund would benefit his sons and their families equally. A sympathetic reading of these instruments warrants the conclusion that the grantor intended all members of his bloodline to receive their share. Based upon all of the foregoing, it is concluded that James Mitchell and Warren are “issue” and “descendants” for all purposes of these trusts.


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