Estate Planning in the Age of DNA Testing Kits

By Christine Collins

            We all saw the commercial on TV – a smiling older gentleman, repeatedly opening the front door of his home to young people who were, presumably, strangers not long before yet shared some percentage of their DNA with the man.  The man looked happy, ready to share the joys of the holiday season with the former-strangers-turned-kin.  Did any of you pause and wonder, “what else does he have to share with them?”

            Now imagine this:  you’re sitting at your kitchen table one morning, enjoying a cup of coffee, when you receive an email from the DNA testing service with which you registered and submitted your DNA, just out of curiosity or to determine if you are genetically predisposed to certain medical conditions.  The email contains a message from a young woman who believes she is your granddaughter.  (?!?!?!?)  No doubt 40,000 thoughts come rushing to you all at once, the first 39,999 of which probably don’t relate to your estate plan, but at some point you may ask yourself, “if she is who she thinks she is, could she be in line to inherit my assets someday?”

            If you live in Virginia, you can likely breathe a sigh of relief.  About the inheritance, anyway.

            I recognize that there may be a multitude of ways that the woman is the offspring of your child but you do not know her, but for our purposes let’s assume it happened in one of the two most common:  she was given up for adoption or your child donated sperm or eggs.  Section 64.2-102 of the Code of Virginia addresses these scenarios, stating that if a parent/child relationship must be established for purposes of determining rights in and to property pursuant to a deed, will or trust or intestate succession (dying without a will or trust):

“1. An adopted person is the child of an adopting parent and not of the biological parents…” and

“2. The parentage of a child resulting from assisted conception is determined as provided in Chapter 9 (§ 20-156 et seq.) of Title 20.” 


I looked up Chapter 9 of Title 20 for the assisted conception answer.  The relevant Code section (§ 20-158.3) states that “[a] donor is not the parent of a child conceived through assisted conception…”

Section 20-164 goes on to clarify that a when a person’s status as a child is negated by these and other portions of the Code not relevant to our discussion, such status is negated for all purposes including intestate succession, probate law exemptions and allowances, and determining eligibility of the child or its descendants to share in a donative transfer from any person as an individual or as a member of a class determined by reference to the status as child.

The long and short of it is, even if you die without having executed a will or trust, under Virginia law the purported granddaughter will not end up inheriting your assets through your child, her biological parent, in the scenarios presented here.  However, you should absolutely execute a will or trust (see my post “Estate Planning Basics:  The Documents”).  Your will or trust, if properly drafted, will include definitions of children and descendants, which will conform to the law and provide additional clarify on the matter. 

Finally, anything is possible – maybe you will connect with your biological granddaughter and end up like the smiling gentleman in the TV ad.  In that case, you can choose to include your granddaughter in your will or trust.  Communicate with your estate planning attorney, who can tailor your documents to include provisions for her to the extent that you are comfortable.

Christine Collins is an estate planning attorney in Williamsburg, Virginia.


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