Colorado Probate Blog - Wade Ash Woods Hill & Farley, P.C.

Leggo My Eggo -or- Who Gets My Gametes When I Die?

Among the many wonders (and occasional terrors) of modern medicine, few strike more of an emotional chord than advances in reproductive technology. Preserving our genetic material for use after death has passed from science fiction to scientific fact; but the law remains unestablished in Colorado as to what happens if there is a dispute about ownership of frozen sperm, ova, or embryos after the death of one or both of the donors.

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Estate of Petteys v. Farmers State Bank of Brush, 2016 COA 34, No. 14CA1581

On March 10, 2016, the Colorado Court of Appeals issued an opinion that reversed the trial court and held that an irrevocable trust, a part of which was included in the gross estate of the decedent, was required to contribute its pro rata share of estate taxes under Colorado's estate tax apportionment statute. Our firm had prepared the Will for the decedent, in which estate taxes attributable to the irrevocable trust's inclusion in his gross estate were specifically apportioned to that trust. The trust had been created in 1958. The decedent died in 2009; a U.S. Estate Tax Return was filed in 2010, the estate paid the entire tax due, and the personal representative requested that the trust contribute its share of the tax. When the trustee refused, the personal representative brought suit. Initially, the trial court held that because federal law was silent as to apportionment to such interests prior to the 1986 effective date for IRC 2207B, the Colorado statute at 15-12-916 applied, but the court did not decide certain other issues. After the IRS completed its audit in October 2012, final request for contribution was made. A hearing was held before the trial court in 2015 on the remaining issues, and the court ordered, among other things, that the effective date statute at 15-17-101 permitted the court to refuse to apply the Colorado Probate Code if it found it to be "inequitable." The trial court found that it would be inequitable to force the trustee to pay its pro rata share of the tax and entered judgment for the trustee. The personal representative appealed.

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