A surviving spouse is generally entitled to inherit certain property when their spouse dies, even if the spouse did not leave a Will. In fact, a surviving spouse can claim an inheritance even in situations where their deceased spouse left a Will but tried to disinherit their spouse in the process. But, does the deceased spouse’s sperm or other genetic material fall under the category of a “testamentary gift” that the survivor is entitled to obtain and use? That was what one woman tried to claim, arguing that she should be allowed to obtain her deceased husband’s frozen sperm and use it to conceive his child, ten years after his death.

The California Court of Appeals recently upheld a lower court’s ruling that the woman’s deceased husband’s frozen sperm was not a testamentary gift of property, and that she is not entitled to use it. The fact that she was his surviving spouse and next of kin had no bearing on the court’s decision. The woman also tried to claim that she should be allowed to use the sperm under the Uniform Anatomical Gift Act, which governs organ and tissue transplants, however the court rejected this argument too.

In large part, the court’s decision hinged on the fact that the man, who had fallen into an irreversible coma before his death, didn’t know that his sperm had been extracted or frozen. Of course, this means that he could not consent to his wife’s use of the material to conceive his biological child.

For couples who are considering freezing eggs or sperm in the hopes that a surviving spouse will be able to use the material later, the court’s ruling is clear that there must be express written consent documenting the parties’ intent that the sperm or eggs can be used to conceive a child even after the death of the party whose material was frozen.

This type of consent could be a standalone legal document, or included in estate planning documents. To learn more, contact The Estate Planning & Legacy Law Center today!