Advances in science and technology have brought us many things and many opportunities over the last century. They have also dramatically changed what we include in our estates for the purpose of estate planning. Digital assets, for example, are now something that the average person must address in an estate plan. Another asset that you, or your spouse, may include among your assets is genetic material. This particular addition to estate assets can cause a significant amount of confusion and conflict if you do not plan for its disposition in your estate plan.

A century ago, a couple who was unable to conceive a child had very few options. Today, however, a couple with fertility issues has a wide variety of options that can lead to conceiving a child. Many of these options require the extraction of eggs from the female and/or sperm from the male. In some procedures, the two are then combined outside the womb, creating a fertilized egg, or embryo. What happens to all this genetic material is one of you dies? Would your husband want you to go ahead and try to conceive a child if he were no longer here? Likewise, would your wife want you to locate a surrogate to carry an embryo if she dies tomorrow?

Courts are still in the early stages of wrestling with the legal issues that are presented by questions such as these. For your part, however, the issues can be simplified if you and your partner agree to the answers and then reduce those agreements to writing and make them part of your estate plan.