Five Things to Know About Planning for Life After Death: Laws of Succession vs. The New Biology

It is said that being able to make our own decisions about our health, body and sexual life is a basic human right. But, it may surprise you that, even if a basic human right, historically, there was no recognized property interest in one’s body or its parts, in life or after death. At Katten’s annual 2023 Chicago Private Wealth & Fiduciary Seminar, “Advising UHNW Families in an Era of Uncertainty,” Private Wealth Partner and National Chair Joshua Rubenstein led us through the five things we cannot control in his excellent outline on reproductive technology, “Planning for Life After Death: Laws of Succession vs. The New Biology.” 

1. Control Over Disposition of Remains 
   • With respect to our own bodies, common law has developed a set of protections or rights that have the effect of granting certain property rights in one’s own body, but what we really have is the right to possess our own bodies and to exclude others from using our bodies. 
   • With respect to the bodies of others, the next of kin has a “quasi-property” right in the body of the decedent, which consists of the right to possess the body for purposes of burial, to recover damages for the mutilation of the body, and the right to prescribe the manner and place of burial, but not the right to sell the decedent’s body or its parts. 
   • Cases involving lifetime dispositions of body parts involve policy considerations militating against finding property interests in them, which policy considerations have prevented a finding of such rights in corpses.
   • While there seems to be a preference to accommodate a decedent’s wishes regarding the disposal of his or her remains, disposal is usually guided by (a) the decedent’s wishes, (b) rights of family members and (c) state statutes that prioritize decision-making authority, and each state regulates this area differently.
2. Control Over Disposition of Body Parts
   • There remains considerable reluctance of the courts and lawmakers to regard the human body or its parts as property over fears, warranted or not, over-commercialization or commodification of the human body. 
   • While it is generally illegal to sell one’s body or parts, it is generally legal to receive payment for services rendered in donating blood, sperm and ova (as opposed to payment for the parts themselves). Indeed, surveys have found that 90% of sperm donors are compensated.
3. Control Over Posthumous Reproduction 
   • The power to make and act on decisions about reproduction is central to how people shape their lives.
   • With continuing developments in biotechnology, it is increasingly more common (and successful) for the gametes (eggs and sperm) of a deceased person to be retrieved, stored and ultimately used to create a child after the death of a genetic parent. In determining whether a surviving partner, for example, could use the decedent-partner’s gametes for posthumous reproduction, the decedent-partner must have given prior consent (although consent may be inferred or implied by the court). 
   • As couples delay having children because of career or any number of other reasons, it is more and more frequent for those couples to cryopreserve their gametes and/or pre-embryos for their use “when the time is right.”  Issues inevitably arise in the event of divorce, death or disagreement, and for that reason, it is prudent that the couples determine their respective rights vis-à-vis the stored genetic material by detailed agreement. The agreement should set out the parties’ intentions for what happens to the genetic material in the event of the couple’s separation, divorce, death, or other unforeseen occurrence. As with a premarital agreement, the parties may begin on the same page but end up in very different places as circumstances change and time passes, and so the agreement should be revisited from time to time and as circumstances change. Ensuring that the parties’ intent is clearly stated should be a priority.
   • The Uniform Parentage Act (which has been adopted at least in part by Alabama, California, Colorado, Delaware, Hawaii, Illinois, Kansas, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Rhode Island, Texas, Utah, Washington and Wyoming) provides that ‘‘[i]f an individual who consented in a record to be a parent by assisted reproduction dies before placement of eggs, sperm, or embryos, the deceased individual is not a parent of the resulting child unless the deceased spouse consented in a record that if assisted reproduction were to occur after death, the deceased individual would be a parent of the child.’’
4. Control Over Inheritance by Posthumously Reproduced Individuals
   • Posthumous reproduction raises a range of issues pertaining to, among other things, the ownership (in a property law sense) of gametes and the inheritance rights and benefits of posthumously conceived children.
   • Children born posthumously to their parent’s death, although conceived prior to death, generally have the same inheritance rights and benefits as children born during the parent’s lifetime.
   • There is little agreement among jurisdictions and commentators on the inheritance rights of children conceived after the death of one parent, and it is not until recently that a few jurisdictions had even attempted to address such births when conception occurred after the biological father’s death (i.e. cryopreserved sperm implanted into mother after biological father died). 
   • The commonalities among jurisdictions are that the surviving parent must provide proof of the deceased parent’s intent for the posthumously born child to inherit and implementation or birth within a few years. Clearly, this area must be addressed by legislation.   
   • To be safe, consider redefining Will/Trust provisions defining “children” or “descendants” to specifically exclude (or include) posthumously conceived children from inheriting. 
5. Control Over Posthumous Paternity Testing With Respect to Alleged Lifetime Conceptions
   • Many state statutes permit the determination of paternity to establish heirship after the death of the father, provided paternity is established by “clear and convincing” evidence. DNA testing to establish paternity is virtually fool-proof – 1 in 7.5 trillion accuracy rate – and, presumably, constitutes “clear and convincing” evidence to establish paternity (or non-paternity). 
   • A key impediment to obtaining DNA in these scenarios is that the putative parent (typically a putative father) is dead and buried. As noted above, next-of-kin have, at best, a quasi-property right in a decedent’s body for purposes of burial. Once buried, the remains are in the custody of the law, rendering removal or disturbance subject to the jurisdiction of a court of equity. 
   • Most courts, however, will consider an exhumation request if there is reasonable belief that evidence to be found is probative to determine paternity and if there is sufficient evidence that the bone or tissue is retrievable. Upon sufficient showing of necessity, a probate court can exercise jurisdiction to authorize an exhumation and autopsy of a body located within its jurisdiction.