By Rachel W. Sears, Associate
When we hear “DNA profiling,” most of us think of criminal law, where suspects’ profiles are compared to DNA evidence to assess the probability of their involvement in a particular crime. DNA testing has also been used, notably, to exonerate the innocent who were wrongfully convicted and to reform the criminal justice system.
We may also think of DNA paternity testing, where DNA profiles are used to determine whether someone is the biological parent or grandparent of another person. This type of parentage testing can generate results that are used for child support, public benefits, adoption, or inheritance purposes. More recently, however, DNA testing has enabled newly discovered family members to claim a share of a deceased parent’s estate.
What is a DNA test kit and what does it do?
Genealogical DNA tests look at specific locations of your genome in order to discover ancestral genealogical relationships. In the last twenty or so years, a number of companies have taken DNA test kits directly to consumers, advertising the tests’ capability to find relatives, estimate ethnic mixtures, and identify potential diseases. The testing companies obtain DNA samples by using saliva-based testing including cheek swabs, spit-cups, mouthwash, and chewing gum. That small sample contains a wealth of information about your genetic code (this implicates a number of privacy concerns, but those are outside the scope of this post). Once the DNA testing company has analyzed your sample, you log in to an online account to read your results.
For some, DNA results can be an interesting way to dig deeper into your family history or a confirmation of known information. For others, the results can be surprising and life-altering, and it’s becoming more common to hear about these types of genetic discovery stories. Take, for example, author Dani Shapiro, who through DNA testing discovered that her father was not in fact her biological parent.
How does DNA testing affect estate planning?
In Maine, at least two significant estate planning and inheritance problems can arise in the event that new children are discovered.
If you die without a valid Will in place, or you had a Will but the document did not effectively dispose of all of your assets, all of your legal heirs are entitled to a share of your estate. This means that a biological child – including one you might not intend to benefit from your estate – might come forward after your death and claim part or all of your estate if you failed to execute estate planning documents that provide otherwise.
Even if you die with a Will in place that grants your estate to your children, Maine’s “pretermitted heir” statute might still apply to permit a biological or adopted child who is omitted from the Will (and who was born or adopted after you executed your Will) to receive a share of your estate equal to the value which the child would have received if you had died without a Will.
How can you prevent confusion over your intended heirs?
If your Will simply says that you leave your estate to your “children,” a Maine court may find this term ambiguous and ultimately conclude that “children” includes nonmarital biological children as heirs to your estate. Therefore, for estate planning purposes, the bottom line is to have a clear plan in place and documents that are unambiguously worded. Work with an attorney to draft and execute the proper documents and be specific about your wishes. Don’t forget to revisit your documents when a new child comes into the family, and always specify who qualifies as a “child” in your Will.