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The Issue of "Issue"
By Jonathan G. Blattmachrand Michael L. Graham
© 2007. All Rights Reserved.
Class gifts are commonly made in Wills and trusts. For example, it is common for a property owner in an instrument disposing of property to make reference to "issue,"
"children," "descendants," "heirs-at-law," "nephews," "nieces" and similar classes. "Issue" seems to mean "descendants"
and we will use those terms interchangeably in this article. But the meaning of the terms used in class gifts is not always certain. Let's take some common examples.
Nieces and Nephews
A surviving spouse decides to leave $10,000 at her death to each of her nieces and nephews. Her Will provides "I leave $10,000 to each of my nieces and nephews who survives me." She
thinks that the bequest will include her husband's nieces and nephews whom she regards as her own nieces and nephews. Although it is universal throughout the country for both the husband and
wife each to refer to the other's nieces and nephews as his or her own nieces and nephews, that is not technically correct. Hence, when making such a class gift, it is important to specify
exactly which persons are covered. For example, it would be preferable for the foregoing bequest to read "I leave $10,000 to each of my and each of my husband's nieces and nephews who
survives me."
Stepchildren
A somewhat similar question of intent may arise with respect to stepchildren. In fact, stepchildren are so common that they are treated as children for certain legal purposes. There is, for
example, a statute so treating stepchildren in Alaska for hunting purposes. A true story will illustrate the point. A wife died while her and her husband's children were all very young (from a
few months of age to age four). The husband remarried soon thereafter and had four more children with his second wife who raised all eight as their own. After all the children reached the age
of majority, she created a large trust for her "descendants," giving no thought to (and without apprising the drafter of the trust of) the fact that the four older children were not
hers. Based upon a construction proceeding during her lifetime and based upon her testimony that she intended to include all of her husband's children (who were adults when the trust was
created), the court construed the instrument to include all of them. Her own children joined in the requested relief—perhaps, the result would have been different if they had taken the
position that their half brothers and sisters should not be found to be part of the class.
His, Hers and Ours
If a document is being prepared for a married person and either spouse has a descendant who is not also the descendant of the other spouse, WTP offers choices in the definition of issue (or
descendants). One choice is to include only descendants of the person executing the instrument. The second choice is to include only those persons who are descendants of both the husband and
wife (so, by way of example, the child of the husband from a prior marriage would be excluded unless that child had been adopted by his current wife). The third choice is to include
descendants of the husband, of the wife and of both of them. The fourth choice is to custom draft. This choice might be used where, for instance, the wife wants to include all of her
biological descendants (both of her current marriage and those born to her before that marriage) and one but not all of her husband's children. Further, in the joint revocable trust, there is
an additional trust that the property of each spouse will pass to the descendants of that spouse. When that choice is made, the instrument mandates separate tracking of the property of each
spouse, with that property ultimately passing to the descendants of that spouse. Precision in such drafting, of course, is important. For example, the definition of the "descendants"
should specify whether it is only that one specifically identified separate child of the husband who is within the class or also that child's own descendants.
Adopted Issue
Many people in the United States adopt children. All states now provide that adopted children are included in class gifts that would include them if they were "natural" children,
unless they are expressly excluded. Although almost all people view their adopted descendants are their own, some wish to place limits on when an adopted person will be consider a member of a
class to whom a gift is made. In fact, some states provide that only a person adopted while a minor is included in a class gift (unless the governing instrument provides otherwise). All states
provide that adopted relatives participate as fully as natural ones do for purposes of intestacy distributions. For example, where a person dies without a spouse, descendants or siblings, a
person who was adopted by a sibling will participate along with natural (biological) nephews and nieces.
Almost certainly, state law will exclude from a class a person adopted "out of" a family. For example (and again this is a true story), soon after a young couple divorced, the
former wife remarried. She and her second husband raised the child of the wife's first marriage. The biological father never contacted his child after the divorce but did pay child support.
Eventually, he consented to having the second husband adopt his child. He was thereby relieved of any further child support obligations and his child, as a general rule, would no longer
inherit from or through the biological father. By the way, this "adoption out" rule is why a child placed for adoption will no longer be treated as a descendant of the natural mother
(or the natural mother's relatives) whose child has been adopted by others. But it may not be appropriate to exclude descendants adopted by others in all cases. For example, a woman's married
daughter has a child. The daughter dies while the child is still a minor. The daughter's husband, who is the child's father, remarries and his new wife adopts the child as her own. The woman
may well continue to view her daughter's child as her grandchild and want that grandchild to share in her wealth along with her other descendants.
In any case, Wealth Transfer Planning offers the choice, in drafting an instrument, to specify if an adopted person is to be treated as a descendant only if the adoption occurs before the
adopted person reaches a certain age. WTP will be soon adding a provision to exclude adopted persons, although we anticipate that will be rarely used.
Non-Marital Issue
Unmarried persons with children represent another complication to class gifts. In most states, a child born out of wedlock (that is, the parents were neither married at the time of conception
nor at the time of birth) is always treated as an heir of his mother so that the child may receive an intestate share from the mother or her relatives and the mother may receive an intestate
share from her child and the child's relatives. But fathers normally are treated differently. Generally, a child inherits from the child's father under the intestacy provisions only if certain
proof is presented (e.g., clear and convincing evidence that the child is the biological child of the father and the father's voluntary acknowledge of fatherhood or the entry of a court order
of paternity). See, e.g., New York EPTL 4-1.2. And, in some cases, the determination of whether non-marital persons are included in class gifts made in instruments (such as a gift for the
property owner's descendants) is based upon the intestacy rules even though the property is not devolving in intestacy. EPTL 2-1.?. The distinction between inheritance rights with respect the
mother and the father was made on the basis of proof: that it is much easier to know who is the birth mother is than who is the birth father. But lately courts have expressed frustration with
legislatures for failing to amend these statutes to take into account the virtual certainty of proof of parentage (fatherhood) through DNA testing. In fact, some courts have questioned whether
the distinction may constitute invidious discrimination that prohibited under the equal protection amendment of the United States Constitution.
In any case, WTP offers two choices to determine when a non-marital person will be included in the term "descendant." One is to have the non-marital person included only if the
biological parents marry before the child reaches majority. The other is to have the person included regardless of whether the biological parents marry. Several other options are available and
WTP will be adding a "custom draft" option.
New Biology: Advances in Procreation
The advances in fertility methods present another interesting set of questions with respect to class gifts and inheritance rights. For example, a man who donates his sperm or a woman who
donates her egg is the biological parent of any child born from that sperm or egg. Yet the law has been clarified that any "blind" donor (e.g., contribution of sperm to a sperm bank)
is not the "legal" parent of any child so born. Of course, if a husband has his sperm used to artificially inseminate his wife, the child is his for class gift and inheritance
purposes (as well as obligations of support, etc.).
Another circumstance, based on the "new biology", occurs where a husband has his sperm frozen or a wife has her eggs frozen for later use for the couple to have a biological
child. (Frozen sperm and frozen eggs are referred to a "gametes.") That happens frequently where either spouse will undergo chemotherapy because such therapy often causes
infertility. The husband or wife who had the gametes frozen may die before conception occurs. After that spouse's death, for example, the surviving wife may use the other's gametes to become
impregnated. Certainly, the deceased husband is the biological father of the child (which may be proved in a variety of ways, including DNA testing). Among other questions, however, is whether
the posthumously conceived child is an heir of the father under intestacy law or entitled to participate as a member of a class where other biological descendants of the father would
participate. For example, a testator dies and leaves his estate in trust for his wife. Upon her death, the property will pass to testator's "then living issue". His son predeceased
him, leaving frozen sperm which the son's widow uses to become impregnated and gives birth to a child. If the posthumously conceived child is born (or is "in utero") before the death
of the testator's wife, will that child take as a member of the class of issue?
Few states have addressed this issue in legislation. The few cases that have been decided indicate that, as a general rule, such a posthumously conceived child will be considered a member
of the class. Most of the cases, however, turn at least in part on the question of whether the child was a heir of the father (that is, whether the child would be entitled to an intestate
share) even if that specific question is not before the court. For example, in three cases where a posthumously conceived child sought social security benefits as a minor based upon the
biological father's social security payments, the cases turned, at least in part, on whether the child would be an intestate taker.
Although more rare, it is possible, as indicated above, for a female descendant to have a biological child born after death where her eggs are frozen and used by her surviving husband
through an in vitro procedure to produce a zygote using his sperm and her egg and where the fetus is carried by another woman. In fact, it was recently reported in that the time is near when
the fetus will be "carried" for the term of the "pregnancy" in the proverbial test tube. Popular Science (September 2005), p. 72.
Many people who would regard a posthumously conceived child as his or her own. After all, they and the law almost universally provide that a child in utero (e.g., where a married son dies
leaving a pregnant wife who gives birth to a child) is within the class of his issue. It does not seem a big stretch to include a posthumously conceived child as well. But there are
differences. A child in utero will be born almost certainly within nine months of the father's death. Frozen gametes (frozen sperm or frozen eggs) may stay viable for a decade. This
distinction may matter where the class of person to whom the gift is made is or is not closed. For example, a man dies without a Will in a state that provides for part of his estate to pass to
his surviving spouse and the balance to his children. If his wife is pregnant at his death, the intestate shares of the surviving children cannot be determined until the child being carried is
born (or dies before birth). But the waiting time is limited, as indicated above, probably to no more than nine months. Nevertheless, in the case of a posthumously conceived child, the waiting
time could be years. Therefore, it seems appropriate to consider providing for a posthumously conceived issue to take only if the child is born or at least the pregnancy has occurred before
the class is closed. For instance, in the example above where the testator's former daughter-in-law used his son's frozen sperm to become pregnant, the child would have to be born or at least
conceived before the testator's wife dies.
The much greater frequency of posthumously conceived children and the lack of clear state law addressing whether such a child is an issue suggests that drafters of instruments that make
class gifts should consider adding a definition about the matter. Here is an example:
The term "issue" or "descendant" in this instrument shall include any biological descendant of mine (who is not been adopted by a person who is not a descendant of mine
unless the adoptive parent is married to a descendant of mine who is the parent of such person or unless the adoptive parent is married to a former descendant of mine who has died prior to the
adoption) whose conception has resulted from the use of a frozen gamete of deceased descendant of mine and gamete of my deceased descendant's surviving spouse and that posthumously conceived
descendant has been born or is in utero prior to the determination of the issue who would take the property outright or for whom it would be placed in a separate trust for descendants under
this instrument.
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