How can I benefit from establishing a Fertility Preservation Trust?
As Life Changes, so do your wishes. As your wishes change, so can your trust.
Greater Flexibility. Added Protection. Longer storage Options.
What is a fertility trust and how does it differ from IVF clinic or cryobank consent forms?
You may have been presented with forms which allowed you to “check the box” or fill in certain wishes for the future, and you may ask “Why would I establish a trust when I signed documents at the clinic/RTL form stating disposition wishes?”
- You’re able to customize your wishes to your life circumstances. Given the volume of clients treated by IVF clinics, consent forms by nature must remain general in order to broadly cover the needs of all clients. Using a trust, you are able to consider a wider range of options and customize your trust provisions to match your particular life circumstances and family dynamic. As life changes, you can easily change the trust with an addendum, as many times as you wish.
- A trust can survive your death. Unlike the consent form, which becomes void upon death, the trust can survive death, and your wishes can continue to be carried out by a trusted individual, named by you in the trust, for generations in the future. Also, unlike the consent form, the trust is an entity which can be funded after death to continue payment of storage fees, if you so wish. This reduces the likelihood of abandoned embryos/gametes after death. Liquid assets to pay storage fees can either be allocated to the trust from the estate, or by naming the trust as beneficiary of a new or existing life insurance policy. This reduces the possible financial burden on your family after death.
- Another benefit at death: trust assets are not probate assets. The terms of the trust control without court interpretation. Courts are inconsistent (to put it gently) when interpreting consent forms, and sometimes refuse to honor your wishes as listed on the form. Using a trust, ownership passes per the trust automatically without the necessity of a court order.
- A trust can reduce disputes in a divorce proceeding: We’ve all seen the headlines. Divorce is a legal matter. A trust can provide the legal language that judges understand in a divorce proceeding. For example, the trust may specify the spouses intend that the trust may be introduced as a settlement agreement in a divorce proceeding with specific regard to their stored specimens. Clearly written language expressing intent during divorce greatly reduces extended disputes in the proceeding.
Who controls the trust? Do I have to give the power to someone else?
No. This is a revocable trust. You, or if co-creators such as couple storing embryos, both of you, remain in control of the trust, as Trustee, while you are living and competent to be Trustee (if Co-Trustees, the survivor will generally serve after death of the other Trustee.) After death, if the trust continues, it becomes irrevocable. This insures the Successor Trustee can only carry out the terms of the trust as written, and not amend at will or misappropriate the funds which are intended for storage fees.
Will I need to file a tax return on the trust? Are there any reporting requirements?
No, this is a private trust, and while there are no liquid assets in the trust (generally during your lifetime), the trust contains no income producing property. No Federal Taxpayer Identification Number is required and no tax return is due unless the trust produces income.
If I’m storing gametes, what are the advantages a trust can offer?
- Survival after death. Some clients, especially oncology patients, would like for their spouse to be able to use their gametes to conceive after their death. If this is the case, it is very important that they have specified this in writing. It’s not always sufficient to check the box stating the surviving spouse receives the gametes at death. Some states require that this request is in writing in order to treat the decedent as the parent of that child. If the decedent is not treated as the parent this could affect social security benefits and rights of inheritance to which the child would otherwise be entitled. The best practice is to address the intent to parent after death in writing. Consent forms don’t always take the client down that path, but should.
- Restrictions on donation. If gametes are available for anonymous donation, you can be very specific regarding geographical restrictions, or even ethnicity or sexual orientation if that is important to you.
- Oncology patients who are minors. Parents, as legal guardians, have the right to make decisions on behalf of their child with regard to the child’s gametes/tissue. Parents often relinquish control when the child reaches majority, and establishing a trust which names the child as Trustee upon majority makes this transition seamless. The child then has the ability to use the gametes/tissue at will, or change the terms of the trust in any way to accommodate his or her current or future circumstances.
How does the fertility trust work together with Cryobank Storage Agreements?
You will still be required to complete and sign (or may have already completed and signed) forms provided by the cryobank where your specimen is stored. To the extent the trust addresses the time period during which the specimen is to remain stored and specific disposition wishes (to whom, under what circumstances, etc.), the terms of the trust control. The cryobank retains control over storage and release protocol, fees, collection of fees and consequences of nonpayment, etc. You can either authorize my firm to share the trust with the cryobank for their files, or you may personally share the trust with the cryobank so that it can rely on those provisions when it becomes necessary. In short, if you have established a trust, it should be “business as usual” for the cryobank, and the trust would only need consideration when confirming disposition wishes.