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Matter of Martin B. - 2007 NY Slip Op 27306, 17 Misc. 3d 198, 841 N.Y.S.2d 207 (Sur. Ct.)


Under the Uniform Parentage Act (UPA) (2000, as amended in 2002), a man who provides semen, or consents to assisted reproduction by a woman as provided under § 704, with the intent to become a father is the parent of the child who is born as a result (UPA § 703). Under § 704 of the UPA, both the man and the woman must consent in writing to the recognition of the man as the father. The UPA has also addressed the situation where the potential parent dies before the act of assisted reproduction has been performed. In such situation, the decedent is the parent of the child if the decedent agreed to the use of assisted reproduction after his death. UPA § 707.


The Grantor, Martin B., who was a life income beneficiary of the trusts, died on July 9, 2001, was survived by his wife Abigail and their son Lindsay (who has two adult children), 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 cryopreserved and that, in the event of his death, it be held subject to the directions of his wife Nancy. Although at his death James had no children, three years later Nancy underwent in vitro fertilization with James' cryopreserved semen and gave birth on October 15, 2004 to a boy (James Mitchell). Almost two years later, on August 14, 2006, after using the same procedure, Nancy again gave birth to another boy (Warren). It was undisputed that these infants, although conceived after the death of James, were the products of his semen. The trustees brought the proceeding because under the trust instruments, they were authorized to sprinkle principal to the decedent's "issue" and "descendants." Therefore, they needed to know whether the James’ children qualified as members of such classes.


Were James’ children, conceived after the death of James through in vitro fertilization using James cryopreserved semen, qualify as “issue” and “descendants” for purposes of the trust instruments?




The court found it undisputed that the infants, although conceived after James’ death were the products of his semen. Although it could not be said that the grantor contemplated that his "issue" or "descendants" would include children who were conceived after his son's death, the trust instruments provided that the trust fund would benefit his sons and their families equally. Because the grantor intended all members of his bloodline to receive their share, and pursuant to Domestic Relations Law § 73 and EPTL 6.5-7, the infants were "issue" and "descendants" for all trust purposes.

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