Recent media coverage over the death of local West Point cadet Peter Zhu has raised some new and interesting issues which may prompt you to address, or reassess, your Estate Plan. Peter was involved in a tragic skiing accident which resulted in the fractures to his spinal cord and, eventually, his untimely passing. His body was kept alive via life support, pending organ donation removal surgery. Peter died without a Will, Trust, or any other form of Estate Plan. The only directions he left to his heirs was an Organ Donor Card, which authorized a gift of “any needed organs, eyes, and tissues” upon his death.
Peter’s parents petitioned the New York State Court for authority to “retrieve sperm from [Peter] and to provide such sperm to a sperm bank…” and for authority “to use Peter’s sperm for third party reproduction”. Long story short: The Court granted their request. Peter’s parents were allowed to harvest his sperm and are free to use it as they deem appropriate.
Without any explicit instructions from Peter, or clear guidance under the law, the Court was left to try to ascertain Peter’s intentions from a variety of sources. Various cases were cited which gave clear deference to a decedent’s express intentions regarding the donation, or even destruction, of genetic material, but none dealt with a situation where no instructions had been provided. Had Peter left clear instructions to his heirs regarding his wishes on this issue, those wishes would have been followed.
Whether you agree with this result or not, the moral of the story is clear: You should make your intentions on this issue known, and those intentions should be (1) in writing and (2) in the form of a properly prepared Estate Plan (either a Will or a Trust). Your wishes regarding this issue, should be made clear to your heirs (and possibly the Court). Failing to do so leaves it in the hands of others to try to figure out what you would have wanted done. This may result in a decision contrary to your intentions, strife between members of your family, and unwarranted expense to your estate.
If you already have an Estate Plan, this issue can be addressed with a simple amendment or addendum to your currently existing documents. If you don’t have an Estate Plan in place, this issue can be addressed as part of your overall Revocable Living Trust.
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