A 2007 case from New York, In the Matter of Martin B., 17 Misc. 3d 198; 841 N.Y.S.2d 207 (N.Y. Surr.; 2007) involves a man who was married, had no children, and before he died, donated his semen to a laboratory. The man's father made provisions in a trust for all of his issue and descendants. Years after the son died, the son's widow underwent in vitro fertilization and gave birth to two boys, both conceived with the semen from her deceased husband.
The issue arose as to whether these two grandchildren, born after their father's death but conceived with his semen, were considered descendants under the terms of the trust established by the grandfather.
The New York court held as follows:
Finally, we turn to the instruments presently before the court. Although it cannot be said that in 1969 the Grantor contemplated that his "issue" or "descendants" would include children who were conceived after his son's death, the absence of specific intent should not necessarily preclude a determination that such children are members of the class of issue. Indeed, it is noted that the Restatement of Property suggests that "[u]nless language or circumstances indicate that the transferor had a different intention, a child of assisted reproduction [be] treated
for class-gift purposes as a child of a person who consented to function as a parent to the child and who functioned in that capacity or was prevented from doing so by an event such as death or incapacity" (Restatement [Third] of Property [Wills and Other Donative Transfers] 14.8 [Tenative Draft No. 4 204]).
The rationale of the Restatement, Matter of Anonymous and section 73 of the Domestic Relations Law should be applied here, namely, if an individual considers a child to be his or her own son, society through its laws should do so as well. It is noted that a similar rationale was endorsed by our State's highest court with respect to the beneficial interests of adopted children (Matter of Park, 15 N.Y.2d 413, 207 N.E.2d 859, 260 N.Y.S.2d 169). Accordingly, in the instant case, these post-conceived infants should be treated as part of their father's family for all purposes. Simply put, where a governing instrument is silent, children born of this new biotechnology with the consent of their parent are entitled to the same rights "for all purposes as those of a natural child" (id., at 418).
Although James probably assumed that any children born as a result of the use of his preserved semen would share in his family's trust, 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 (see, Matter of Fabbri, 2 N.Y.2d 236, 140 N.E.2d 269, 159 N.Y.S. 184; Matter of Larkin, 9 N.Y.2d 88, 172 N.E.2d 555, 211 N.Y.S.2d 175, Jewell v. Graham, 24 F2d 257, 57 App D.C. 391; O'Connell v Riggs National Bank, 475 A.2d 405). Such instruments provide that upon the death of the Grantor's wife, the trust fund would benefit his sons and their families equally. In view of such overall dispositive scheme, a sympathetic reading of these instruments warrants the conclusion that the Grantor intended all members of his bloodline to receive their share.
One thought that may be taken from this case is that there is a long list of things to consider when one creates a will or a trust. Deciding if a descendant who may not be conceived for another 50 years should receive a portion of the estate needs to be added to that list.
