'Adoptions Shall Not Be Recognized': The Unintended Consequences for Dynasty Trusts
7 U.C. Irvine L. Rev. 545 (2017)
35 Pages Posted: 17 Sep 2015 Last revised: 31 May 2018
Date Written: 2017
A benefactor establishes an irrevocable trust for the benefit of her children, grandchildren and future descendants, with the express provision that “Adoptions shall not be recognized.” Years later, the settlor’s daughter and her husband, using a donated ovum and the husband’s sperm, hire a gestational carrier to carry the child to term. A California court declares the daughter to be the mother, although she is genetically and biologically unrelated to the child. Is the child a beneficiary of the trust? In In re Doe, a New York court struggled with this issue, one which is likely to arise again as multi-generational trusts collide with new ways of creating children. This article is the first to explore dynasty trusts that exclude adopted-in beneficiaries, and the effects of such an exclusion on children of assisted reproduction technologies (ART). If this exclusion is applied mechanically to ART children, the result will be to exclude many the settlor would likely intend to be included, while including others that perhaps should be omitted. ART children must be viewed through a different lens than those conceived coitally in order to carry out the trust settlor’s intent. In addition to proposing methods for courts to interpret language in trusts created decades before assisted reproductive techniques, I recommend language to be included in the drafting of new trusts.
Keywords: trusts, dynasty trusts, multi-generational trusts, assisted reproduction, assisted reproductive technologies, ART, adoption, adopted child, Rule against Perpetuities, RAP
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