Reasoning from the Unborn to the Undead: Cryonics and Exceptions to the Ascertainable Beneficiary Requirement in Trust Law Igor Levenberg St. John’s University School of Law

Obstacles to the PRT The Rule Against Perpetuities The Rule Against Perpetuities –“A contingent future interest must vest, if it all, within twenty-one years after the expiration of some life in being when the interest was created.” –Abolished or changed in many states, so no longer a meaningful obstacle –But what is a “life in being?” The Ascertainable Beneficiary Requirement The Ascertainable Beneficiary Requirement

Trust Mechanics Property (Bundle of Rights) Legal TitleEquitable Title TrusteeBeneficiary Enforcement Fiduciary Duty ControlBenefit

No Beneficiary = No Trust Exceptions Unborn Beneficiaries Trusts for Purposes Beneficiary Form

Unborn Beneficiaries  Conceived  “Life in being” for the purposes of the Rule Against Perpetuities  Same rights and benefits under trust law as a living person  Interests protected by court appointed guardian  Can be sole beneficiary of trust  Unconceived  Really a contingency with rights, not a “life in being.”  If trust challenged still gets a court appointed representative to look out for its interests  Limitations  Cannot be sole beneficiary, since it is not a “life in being”  Must be possibility that child will be born in the future

Reasoning from the Unborn to the Undead Cryopreserved Embryos and Cryopreserved Embryos and Davis v. Davis Davis v. Davis The Intermediate Being Theory The Intermediate Being Theory The Contingent Beneficiary Theory The Contingent Beneficiary Theory

Davis v. Davis Divorce case decided by Tennessee Supreme Court Divorce case decided by Tennessee Supreme Court Issue: What to do with frozen embryos? Issue: What to do with frozen embryos? –Wife wants to donate, husband wants to discard The real issue: Person/Property Dichotomy The real issue: Person/Property Dichotomy –Does property law apply or family law or something else? Holding: Cryopreserved pre-embryos are neither persons nor property, but occupy an interim category that entitles them to special respect because of their potential for human life. Holding: Cryopreserved pre-embryos are neither persons nor property, but occupy an interim category that entitles them to special respect because of their potential for human life. –The potential for human life is a recognized value in law. It makes a difference. The potential for life changes the legal calculus. The potential for life changes the legal calculus. Certiorari denied by U.S. Supreme Court Certiorari denied by U.S. Supreme Court

Trust Law and the Davis Principle A cryopreserved embryo is past the point of conception, so is it a “life in being” for the purposes of trust law? A cryopreserved embryo is past the point of conception, so is it a “life in being” for the purposes of trust law? Just like a normal embryo it has the potential for human life. Just like a normal embryo it has the potential for human life. But no guarantee a person will be born. But no guarantee a person will be born. Have not seen cases on point Have not seen cases on point Take away: Preembryos blur the legal boundaries at the beginning of life, cryonics blurs them at the end. Take away: Preembryos blur the legal boundaries at the beginning of life, cryonics blurs them at the end.

Intermediate Being Theory Cryonaut analogous to cryopreserved embryo Cryonaut analogous to cryopreserved embryo Not legally alive, but an interim category entitled to special respect because of potential for human life. Not legally alive, but an interim category entitled to special respect because of potential for human life. Legal rights of a conceived unborn beneficiary Legal rights of a conceived unborn beneficiary Can hold equitable title Can hold equitable title Can be sole beneficiary Can be sole beneficiary Entitled to court appointed guardian Entitled to court appointed guardian Basically, the ideal Personal Revival Trust. Basically, the ideal Personal Revival Trust. BUT: Court must first determine that cryonaut has a potential for human life and overcome policy objections. BUT: Court must first determine that cryonaut has a potential for human life and overcome policy objections. Difficult because cryonics is speculative Difficult because cryonics is speculative

Overcoming Objections Distinguish between cryonics and other post-mortem remains disposal. Distinguish between cryonics and other post-mortem remains disposal. – Intent. Especially important in trust context. Legal Fiction Legal Fiction –The Fertile Octogenarian –Corporations –If there is a will, there is a way. So can courts find the will? Policy reasons to support PRTs Policy reasons to support PRTs –We value life. Inconsistent with the values of our society to disregard intent not to die. –Socially Beneficial Capital –Actually achieves goals of the Rule Against Perpetuities –Taxes on Interest and Reanimation

Likelihood of Success Low Difficult to overcome the current conception of death Courts are risk averse, not likely to go against majority sentiments

Contingent Beneficiary Exception Analogous to unconceived unborn beneficiary Possibility of revival creates a contingent future interest deserving of legal protection  Entitled to court appointed representative to protect the future interest Same limitations as unconceived unborn beneficiary exception  Cannot be sole beneficiary Another person has standing to challenge the trust Despite weaker protections, has advantages

Advantages Does not require courts to view cryonauts as anything but dead All we are doing is giving legal protection to a a future interest that may or may not come into existence. Probably the best candidate for a PRT So lets look at its main weakness…

…its never been done. We know that an unconceived unborn beneficiary can come into existence. Children are born all the time. But no one has ever been revived from cryostasis. BUT: This argument puts the burden on the wrong party! Obligation to effectuate intent of the trust maker unless: Against pubic policy Not possible to achieve trust purposes Courts will be comfortable with this PRT theory.

PRT Alternatives Revival as condition subsequent Revival as condition subsequent Trust for purposes Trust for purposes

Revival as condition subsequent Different from contingent beneficiary theory No court appointed representative to protect the cryonaut’s interests Other Disadvantages Official beneficiary draws on funds until revival Advantages Can’t challenge the conditions until it occurs, and if it does- the cryonaut is revived-it is doubtful a court will deny the cryonaut his funds. Facially valid. Don’t need to stretch the law.

Trusts for Purposes  Charitable trust Perpetual in every state Don’t need specific beneficiary because enforced by state Attorney General  Honorary Trust Not really a trust Subject to RAP, even in post-RAP jurisdictions  Exception: Perpetual trusts for the care of graves

Piggyback Trust Piggyback condition subsequent onto a charitable trust Advantages Perpetual everywhere Cannot be terminated on the grounds that the purpose has been achieved-there will always been a need for charity Usually not allowed to piggyback non-charitable purpose onto charitable trust. But here is not implicated until the cryonaut is revived, at which point society can be expected to be more deferential to cryonaut rights.

Honorary Trust Trust for the care of grave  The grave is actually the cryostasis pod Attach condition subsequent terminating trust upon revival, with trust funds going to revivee. Limitations on how much money can be put in such trust But facially valid

CONCLUSION At this point the Ascertainable Beneficiary Requirement can be overcome, to a certain extent. But I am optimistic that with time cryonauts will be able to have full PRTs. Lives are Good. Society and the legal system already recognize this, and there is a historical momentum in expanding the idea of who is human and what rights exist.