DNA Test Kits May Mean It’s Time to Refine Your Estate Plan

Written by Dane J. Dehler

DNA testing kits were again one of the most popular purchases this holiday season – right between a smart robot vacuum and all-clad cookware.  That’s after Amazon sold more than $1.5 million of the kits on black Friday 2017. The 2018 numbers have yet to be released, but multiple outlets are reporting that sales may have doubled.

What does this have to do with estate planning?  A lot, actually, which we’ll get to.

DNA testing got a significant public relations boost in 1998, when the body of an unknown U.S. Serviceman killed during the Vietnam War was exhumed from the Tomb of the Unknown in Washington, D.C.  DNA testing was conducted on the remains and revealed the unknown to be Michael Joseph Blassie,  killed in 1972. Read more here.  Discoveries like that of Blassie have piqued the interest of millions of Americans and led them to research their own genealogy.  Some market analysts even believe the global market for mail in DNA kits could be more than $10 billion by 2022.  This is big business, and it is going to get bigger.

Companies such as 23andMe, FitnessGenes, UBiome, DNAFit, Orig3n, Ancestry.com, and Habit, are promising that mail-in genetic tests can change your life for the better because you will know your history, genetic vulnerabilities, and possibly connect with long-lost relatives.  One story can be found here.

Many vendors, such as ancestry.com, offer DNA testing kits at a price point as low as $99.00. One kit was available on Black Friday  for just $49.00. This low price point puts DNA testing at the fingertips of millions of curious Americans.  Many people purchasing kits are in search of their family history, and some, a long unknown parent.  The results can uncover a variety of difficult family secrets.

In one particular case, a man named George accidentally discovered the existence of a biological brother, leading to the divorce of his parents.  More specifically, George submitted his DNA, and that of his parents, to 23andme. 23andme proceeded to add the DNA information to its database of over one million people.  George’s account then showed that he shared 22 percent of his DNA with a person named Thomas, already in the 23andme system.  Further, the system showed that George’s father shared 50% of his DNA with Thomas.  The man reached out to Thomas and found out that Thomas had been adopted at birth.  George shared his discovery with his parents leading to turmoil in the relationship, and ultimately, a divorce.

The existence of these discoveries leads to the question, what about my estate plan?  At least it should.

The emergence of long-forgotten children has the potential to wreak havoc on estate plans.  In Arizona, there are at least two major problems that can arise.  (We won’t even talk about outside Arizona other than to say each one has its own legal landscape in this area — there are differences!)

First, if an individual dies without a Will (called intestate), then all heirs, including all biological or adopted children are entitled to a share of the estate.  The interest of these heirs vests on death of the parent.

This means that a child can come forward after the death of a biological parent to claim all or part of the parent’s estate if the parent fails to execute estate planning documents that provide otherwise.  This might achieve the intent of the deceased parent, but may also thwart the decedent’s expectations.

However, even if you have executed a Will giving your estate to your children, problems can arise.

This is in part because Arizona has what is called a “pretermitted heir” statute.  In short, the statute says that if a testator fails to provide by Will for a child who is born or adopted after the testator executes the Will, the omitted child receives a share of the testator’s estate.  By way of example, let’s say that a testator has his or her first child in 1997.  The testator then does the smart thing and visits an estate planning attorney in 1998.  The visit with the estate planning attorney results in a 1998 Will naming the 1997 child as the beneficiary.  The testator then thinks everything is in order because he has executed a valid Will.  But wait! Two years later our testator fathers a second child.  The testator then fails to update the 1998 Will believing that everything goes to the 1997 child.  In this circumstance, the child born after the execution of the Will may be entitled to inherit what he would have received had there been no Will.

There are some exceptions to the pretermitted heirs statute, such as if the Will shows that the omission of after-born children was intentional. Thus the statute instructs us about how to avoid this problem. The major takeaways are 1) have an estate plan and 2) be very clear in it.

Consider, for example, avoiding generalities such as “children” and “issue,” and naming names.  This means you’ll have to revisit your documents anytime someone is born or comes into the family fold.   And consider defining who qualifies as a “child” – include afterborn?  Born but not known? Stepchildren? Adopted children? Those adopted as adults?

The bottom line is that it is very important to revisit your family situation, especially if there are newly discovered family members, and meet with an estate planning attorney to ensure the proper documents are in place to carry out your wishes, no matter what they might be.