Embryos and Estate Plans: A Legal Gap Many Families Miss

Full analysis

As fertility treatments become more common, couples who have created frozen embryos through IVF face a set of legal questions that standard clinic consent forms do not adequately answer: Can a surviving spouse use embryos after their partner dies? Do children born from those embryos inherit from the deceased parent? Estate planning attorneys Brittany Cook and Monika Jain write that clinic consent forms function primarily as medical disclosures, not enforceable legal contracts, and that families need separate Embryo Disposition Agreements covering posthumous use, incapacity, divorce, storage fees, and inheritance rights. Courts have increasingly turned to whatever written agreements exist when couples dispute embryo disposition — and in states without a signed agreement, outcomes can be unpredictable.

State law varies sharply and has grown more complex since the Supreme Court's Dobbs decision. Alabama's Supreme Court ruled frozen embryos are 'children' under its wrongful death statute, temporarily disrupting IVF services statewide. Louisiana treats embryos as 'juridical persons' (legal entities with recognized rights) and prohibits their destruction, though it allows interstate transfer. For adults in blended families, late-in-life partnerships, or any situation involving stored embryos, the practical step is to ensure that clinic consent forms, a formal disposition agreement, and existing estate planning documents — wills, trusts, powers of attorney — are coordinated and consistent with each other before a death or divorce forces the question into court.