Who are your Children (…in your Will).

 

The world of Wills is more detail-oriented and exacting than the average person might expect. The stakes are high. Improper wording could lead to someone being included that should not be, or excluded. A few words can be the difference between a quick and smooth estate administration or a lengthy litigation process.

Specific Will drafting ensures the meaning is clear and makes things simpler in the long run. One example is commonly used phrase children“whether born to me or adopted by me. This phrase is often used when defining the term “children” or “grandchildren” in a Will, for example:

Any reference in this Will to “my children” shall be a reference to my son, William Wallace, and any other children that I may hereafter have, whether born to me or adopted by me.

When worded this way, some people who are born using assisted reproductive technology would be technically excluded from the definition of “children”.

For example, in a two-parent household where one parent’s genetic material is used, along with a donor egg or sperm, the parent whose genetic material is not used would not be served well by defining “children” in the way set out above. (Especially if some of their children are biologically related to them and some are not.) In those circumstances, the child would be such person’s child from birth, and therefore not adopted, while also not being such person’s biological child or “related by blood”.

Connecticut has a section of the General Statutes dealing with this, in Section 46b, entitled “CONNECTICUT PARENTAGE ACT AND PARENTAGE-RELATED
PROVISIONS”, and while the specifics of that section are longer than can be covered here, be assured, that like all the statutes, they make the issue as clear as mud.

Estate planning lawyers are conditioned to think of such worst-case scenarios so that you do not have to. Ultimately, my opinion is why not just make a simple update to the way we do things to avoid a possible negative outcome?

child And, in this case, using an alternate definition is very simple. One possible solution is referring to the existing laws on parentage, which already account for assisted reproductive technologies. For example:

Any reference in this Will to “my children” shall be a reference to my son, William Wallace, and any other children for whom I am a “parent”, as such term is defined in the Connecticut Parentage Act And Parentage-Related Provisions (Connecticut), or any successor legislation.

 

Or even better, simply name the children you are including as yours.

 

Disclaimer: The information provided in this blog post is for general purposes only and must not be considered legal advice. For specific legal advice, please consult an attorney directly.

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