## Facts

- Martin B. executed seven inter vivos trusts in 1969.
- Martin had two sons, Lindsay and James; Lindsay survived Martin, and James predeceased Martin.
- Before cancer treatment, James cryopreserved semen and instructed that his wife, Nancy, could use it at her discretion if he died.
- James died in January 2001.
- Martin died in July 2001, survived by his wife, Abigail, and son, Lindsay.
- Approximately three years after James’s death, Nancy used James’s cryopreserved semen through in vitro fertilization to conceive and give birth to two sons, James Mitchell (born October 2004) and Warren (born later).
- During Abigail’s lifetime, the trusts authorized trustees to make discretionary principal distributions among Martin’s “issue” and, at Abigail’s death, provided Abigail a special power of appointment; absent appointment, trustees again could make discretionary distributions among Martin’s “issue.”
- The trust instruments did not expressly address children conceived after a parent’s death through assisted reproductive technology.
- The trustees filed an uncontested application for advice and direction seeking construction of “issue” and “descendants” to determine whether James’s posthumously conceived sons were eligible beneficiaries.

## Issues

1. Whether children conceived after the death of a biological parent using that parent’s cryopreserved genetic material fall within the terms “issue” and “descendants” of the grantor under preexisting inter vivos trust agreements.
2. Whether New York intestacy concepts regarding posthumous children control, or merely inform, interpretation of class terms in a third-party trust with ongoing administration.
3. What role donor consent, grantor intent, and administrative practicality play in construing “issue” and “descendants” in the context of posthumous conception.

## Decision

- The Surrogate’s Court of New York County held that James Mitchell and Warren are included within the terms “issue” and “descendants” of Martin B. under the seven trust agreements.
- The court authorized the trustees to include them among the eligible class for discretionary trust distributions during Abigail’s lifetime and for later dispositions tied to Martin’s “issue.”
- The court treated the proceeding as an advisory, nonadversarial construction within the Surrogate’s Court’s trust-and-estate jurisdiction.

## Legal Principles

- Class terms such as “issue” and “descendants” in an inter vivos trust may be construed to include posthumously conceived children when the instruments and surrounding circumstances show an intent to treat biological descendants of each family line equally.
- Intestacy and probate policies favoring prompt estate administration do not necessarily govern construction of beneficiary classes in ongoing trusts, where administrative finality concerns may be less acute.
- In the absence of controlling statutory direction on posthumous conception, courts may consider comparative authority, modern treatment of assisted reproduction, and evidence of the genetic parent’s consent and intent to have posthumous children.
- Clear evidence of the deceased parent’s authorization for posthumous use of genetic material supports recognizing resulting children as descendants for trust-beneficiary purposes.
- Practical constraints relevant to trust administration, including whether the class is likely to remain finite, may inform an inclusive construction without creating indefinite uncertainty.

## Conclusion

The court construed Martin B.’s trust terms to include children conceived after a son’s death using the son’s cryopreserved semen, reasoning that intestacy limitations were not controlling for a third-party trust and that the trust plan, donor consent, and manageable administration supported treating the posthumously conceived grandchildren as Martin’s “issue” and “descendants.”


In re Martin B., 17 Misc. 3d 198, 841 N.Y.S.2d 207 (Sur. Ct. N.Y. Cnty. 2007)