CALIFORNIA PROBATE CENTER

The Authority for Probate Litigation and Estate Planning in California

California Probate Court Correctly Denied Use of Frozen Sperm by Widow

Posted on | September 16, 2008 | No Comments

A California probate court [See "What is California Probate?"] correctly ruled that a widow was not entitled to her dead husband’s frozen sperm, held the California Court of Appeal (Third District). Estate of Kievernagel, C055516 ( 9/11/08). The issue was whether Joseph Kievernagel would have wanted his wife, Iris Kievernagel, to have the sperm after his death. The sperm preservation agreement provided for two options upon the death of Joseph, either it would be donated to Iris or destroyed. Joseph initialed by the latter option, and both husband and wife signed the document. Joseph died in a helicopter crash in 2005.

Iris was appointed administrator [See "California Personal Representative"] of Joseph’s estate and then petitioned the probate court for a preliminary distribution of an “asset of no financial value” but “of immense sentimental value to the widow.” Joseph’s parents contested the preliminary distribution, claiming that it was against the testamentary intent of Joseph.

Frozen sperm falls within the broad definition of property in California Probate Code §62. Hecht v. Superior Court (1993) 16 Cal.App.4th 836, 846. This court agreed with Hecht that “gametic material, with its potential to produce life, is a unique type of property and thus not governed by the general laws relating to gifts or personal property or transfer of personal property upon death.” Estate of Kivernagel. Presumably, this means that a person can dispose of sperm or embryos in an instrument (or perhaps without any instrument at all) that does not meet the requirements of a formal will [See "Advantages of a Will"] – because the sperm bank agreement at issue was not properly witnessed. “Accordingly, in determining the disposition of Joseph’s frozen sperm, the trial court properly relied on Joseph’s intent as to its use after his death.” Id.

The probate court may find such testamentary intent by a preponderance of the evidence. Id. What is interesting is that this holding opens up the possibility of probate litigation over just what the intent of the donor was in the case of a cryogenic agreement that fails to specify what will happen to the genetic material after death. Nevertheless, in this case the written agreement was in place, and Joseph’s intent that the sperm be destroyed upon his death controlled.

Category: Current Events, Probate, Probate Litigation, Will Contests, Wills
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