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Sons Conceived In Vitro Ruled Covered by Trusts
New York Law Journal
August 01, 2007
Three years after James B. died of Hodgkin's lymphoma, his wife Nancy gave birth to the couple's first son, who was named James in honor of his late father.
Two years later -- nearly six years after her husband's death -- Nancy gave birth to their second son, Warren.
Now, as the boys approach their first and third birthdays, their in vitro conception has raised an issue of first impression that New York's Legislature did not consider, for obvious reasons, when it first drafted the Estates, Powers and Trusts Law in the early 1960s.
Specifically, in Matter of Martin B., Manhattan Surrogate Renee Roth had to decide whether the "issue" and "descendants" provided for in seven 1969 trusts includes children conceived with the cryopreserved semen of the grantor's late son -- James B., as he is known in court papers -- whose death preceded his own sons' conception.
Surrogate Roth ruled that the grantor's intent is controlling and that, although his trusts were understandably silent on the subject, they appeared to favor inclusion of young James and Warren among his "issue" and "descendants."
"[The] instruments provide that, upon the death of the Grantor's wife, the trust fund would benefit his sons and their families equally," Surrogate Roth wrote. "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."
Although the parties' names were redacted from the ruling, a number of personal details remained.
The grantor, Martin B., executed seven trusts on Dec. 31, 1969, all seven of which provide that prior to the death of his wife, Abigail, the trustees may "sprinkle" principal to his "issue" and "descendants." The trusts also provide that, should Abigail fail to exercise her right to direct the distribution of the principal at her death, it is to be distributed among surviving "issue."
The trustees initiated the present, uncontested application for advice and direction to determine whether James and Warren may benefit from the trusts.
"The question thus raised," Surrogate Roth wrote, "is whether the two infant boys are 'descendants' and 'issue' for purposes of such provisions although they were conceived several years after the death of [their father] James."
As the judge noted, although the specific issue is apparently of first impression in both New York and Washington, D.C. -- the jurisdictions in which the trusts were executed -- legal issues involving children conceived via artificial means date back more than three decades in New York.
Surrogate Roth cited Surrogate Judge Nathan R. Sobel's 1973 decision Matter of Anonymous, 74 Misc 2d 99, which held that "a child born of consensual [artificial insemination] during a valid marriage is a legitimate child entitled to the rights and privileges of a naturally conceived child" -- as among the earliest decisions regarding children conceived "outside" the body.
She noted that the New York Legislature has addressed the same issue vis-à-vis wills: A recent amendment to the Estates, Powers and Trusts Law excludes "post-conceived" children from sharing in a parent's estate, absent a contrary provision.
That amendment, however, is "applicable only to wills and to 'after-borns' who are the children of the testators themselves," Surrogate Roth wrote. "Moreover, the concerns to winding up a decedent's estate differ from those related to identifying whether a class disposition to a grantor's issue includes a child conceived after the father's death but before the disposition became effective."
The court also reviewed the laws of other jurisdictions, finding a balance between "certainty and finality" and "the human desire to have children [and] the rights of children born as a result of ... scientific advances."
Ultimately, however, Surrogate Roth relied on the seminal Court of Appeals ruling in Matter of Fabbri, 2 NY 2d 236, which held that for the purposes of determining the beneficiaries of a trust, the controlling factor is the grantor's intent as gleaned from the trust agreement itself.
In the present case, she concluded, the overall scheme of Martin B.'s seven trusts reflected an intent to include all of the grantor's bloodline among his issue.
Former governor Mario Cuomo, now with Willkie Farr & Gallagher, represented the two children. In an interview Tuesday, Cuomo praised the decision, saying that the judge appeared to intend to provide the Legislature with a framework to address the issues raised in this case.
"I think that she's been immensely helpful to the legislative process, which is something that I'm familiar with, having been [in Albany] for 20 years," he said.
Both Cuomo and Surrogate Roth could rely on their own memory when researching the case law for this matter. When then-Court of Appeals Chief Judge Adrian P. Burke wrote the majority opinion for Fabbri in 1957, Cuomo served as his clerk. When Surrogate Sobel authored Matter of Anonymous in 1973, his clerk was the future Surrogate Roth.
Jonathan G. Blattmachr, a partner at Milbank, Tweed, Hadley & McCloy, represented the trustees. He could not be reached for comment.
