Volume 6, Issue 1 
June 2011

Reasoning from the Unborn to the Undead: Cryonics and Exceptions to the Ascertainable Beneficiary Requirement in Trust Law

Igor Levenberg

This article was adapted from a lecture given by Igor Levenberg, a student at St. John's University School of Law in Queens, New York to the 5th Annual Colloquium on the Law of Futuristic Persons, December 10, 2009, within the Terasem Island Amphitheatre in Second Life.

Mr. Levenberg examines several well-established legal mechanisms that may be harnessed to establish rights for the cryopreserved person as an existing or new exception to the current rules.

I want to talk about a particular legal problem that, at this point, not many people have faced, but I feel is going to become increasingly common in the next ten to fifteen years. It basically deals with cryonics, trusts and estates. When a person is put into cryostasis, [1] they may wish to leave some money for themselves in the future upon their revival. A trust that serves this purpose is called a Personal Revival Trust [2] or PRT. At this point there are two primary obstacles standing in the way of implementing a PRT. The first one is what's known as the Rule Against Perpetuities, [3] and the other one is the Ascertainable Beneficiary Requirement. [4] I will concentrate more on the Ascertainable Beneficiary Requirement because the Rule Against Perpetuities isn't really that much of an obstacle anymore as it has been abolished in many states. I want to discuss what that is as it contains useful concepts that will show up later. Basically, it says that a contingent future interest must vest, if at all, within twenty-one years after the expiration of some life-in-being when the interest was created. It's somewhat convoluted and creates much trouble for law students, but that's the rule. I want focus on the term "life-in-being". What exactly does that mean?

Trust Mechanics

What is the Ascertainable Beneficiary Requirement? In every trust there has to be a beneficiary. A bundle of rights are divided into legal and equitable title; the beneficiary has the equitable title and the trustee has the legal title. The beneficiary enforces the trust against the trustee and the trustee actually manages it, and must do so in the best interest of the beneficiary. Almost every trust requires there to be an ascertainable beneficiary. As you can imagine, this is somewhat problematic when it comes to personal revival trusts because under current law, a person in cryostasis is deceased, and a deceased person cannot be a beneficiary; no beneficiary equals no trust. However, like many areas of law, there are exceptions, and the two main exceptions are the Unborn Beneficiaries Exception [5] and Trust for Purposes. [6] I'm going to discuss more about Unborn Beneficiaries, but I will also touch upon the Trust for Purposes.

No Beneficiary=No Trust

There are two types of Unborn Beneficiaries: there are the conceived, and the un-conceived. A conceived Unborn Beneficiary is for the purposes of trust law, and for the purposes of the Rule Against Perpetuities, a "life-in-being." In essence, it has the same rights and benefits under trust law, as a living person. For instance, one of the main benefits of being an unborn, but conceived beneficiary is that it can be the sole beneficiary of a trust, which is something that an un-conceived, Unborn Beneficiary cannot be. In fact, an un-conceived, Unborn Beneficiary is not a "life-in-being" - it's merely a contingency with rights. For example, let's say that a trust is challenged by someone, and there's an un-conceived, Unborn Beneficiary - even though it's not a life-in-being, it is still afforded some protection; the protection is that the court has to appoint a representative with fiduciary responsibilities to represent that contingency - that un-conceived, Unborn Beneficiary. As mentioned, this has some limitations; one of the main being that it cannot be the sole beneficiary since it is not a life-in-being, and the other limitation is that there must be a possibility that a child will be born in the future.

From Unborn to Undead

That's the general background of the law as it stands now. In trying to apply this trust law to cryonics. It would be useful to look at how certain law developed around similar areas. One rather similar area, and the reason I call this presentation "Reasoning from the Unborn to the Undead," is because there are cryopreserved embryos and case law dealing with cryopreserved embryos. This is something the courts have struggled with, and one particularly important case is Davis v. Davis.

It began with the Tennessee Supreme Court divorce case of Davis v. Davis. The legal issue dealt with deciding the fate of the couple's frozen embryos. The wife wanted to donate the embryos and the husband wanted them discarded. That was strictly a legal issue, but the real issue was, what type of law do you apply here? Are you going to apply property law? Are those embryos property? Are they "things?" Do you apply family law - are you dealing with people or are you dealing with a person? Is it not a "thing?"

Davis v. Davis

The court actually said something very interesting - it essentially found a middle path. What they said was the cryopreserved embryos are neither persons nor property, but occupy an interim category that entitles them to special respect because of their potential for human life. Isn't that interesting? It's cutting edge if you think about it - but it's really not that surprising because the potential for human life is a recognized value in the law. It makes a difference and it changes the legal calculus.

So that's Davis v. Davis, and those are the principles that I feel can also be applied in the cryonics context. A final note on this case: it was appealed to the U.S. Supreme Court and the court decided not to hear it. It remains somewhat of an open issue because this could be appealed again, but at this point it's a relatively stable area of law. I suspect that if cryonics does become bigger and there is more litigation, the Supreme Court might revisit the issue.

How does trust law interact with the principles from the Davis case? If you think about it, a cryopreserved embryo is beyond the point of conception correct? It is already an embryo, conception has occurred. So it is a "life-in-being" for the purposes of trust law - or is it? If it is, that creates certain problems. On the one hand, just as a normal embryo, it has the potential for human life. On the other hand, there's no guarantee that a person will be born. It's not like a normal pregnancy. I've not come across any cases dealing with this issue on point, so it's definitely a gray area where legal arguments can be made. I believe cryonics also similarly falls into this gray area.

Intermediate Being

What legal arguments can be made? How can we take this principle, or the potential for life, and translate it / transpose it to cryonics? The first theory I'd like to talk about, and it's my favorite theory, is the Intermediate Being Theory. It basically plays off of what the Davis court said. Under this theory, the cryonaut would be analogous to a cryopreserved embryo. While just like the cryopreserved embryo, the cryonaut would not be considered legally alive; it would still be in an interim category entitled to special respect because of the potential for human life. For the purposes of trust law, it will have all of the legal rights of a conceived, unborn beneficiary. S/he will be able to hold equitable title and able to be a sole beneficiary, entitled to a court-appointed guardian in case the trust is ever challenged; it's the ideal personal revival trust.

"...a court must first determine that a cryonaut has a potential for human life..."

In order for this to be implemented, a court must first determine that a cryonaut has a potential for human life and overcome certain other policy objections - this is sort of difficult to do because the truth is that cryonics is speculative at this point, and no one has ever been revived from cryonics.

The first thing to do is distinguish between cryonics and other post-mortem disposal of human remains. The primary distinguishing factor is intent. This means that when you're buried or cremated, you're essentially showing an intent to die, or not to ever be brought back, at least in a physical sense. On the other hand, if you've created a contract for cryopreservation, there's no doubt that there is intent for life, to keep fighting and to not die. Intent is very important, especially in a trust context, where honoring the intent of the trust creator is central. Another thing that will help overcome this speculative objection is that the law allows legal fictions - just because something has never been observed to happen does not automatically mean that it cannot be presumed to occur. For example, there's something called "The Fertile Octogenarian." [7] This is actually a rule of trust law; what it basically means is a conclusive presumption that an eighty-year-old woman can have children. Under trust law, there is a conclusive, irrefutable presumption that an eighty-year-old woman can have children. This has never been observed to happen - especially not in the 1700s when this rule was first created. Over the past two to three hundred years it's been in force, it's never been observed to happen - even with all of our current, modern technology it has not been observed to happen. Yet it remains an irrefutable presumption. The reason the courts presume such is because it's necessary for the purposes of the rule against perpetuities; it's logically necessary. Another fiction is that of the corporation. Corporations don't actually exist, they're legal entities - they're fictions - and yet we allow this because there's good reason. It's socially beneficial and many reasons why legal fictions are entertained. What this shows is that if there's a will, there's a way - if a court can find the will to implement this legal fiction, it can do it.

Let's look at some of the policy reasons that support allowing personal revival trusts, and what would help a court find the will to allow a personal revival trust. First of all, we value life. This is a value that is greatly entrenched in our legal system, in our culture, in every level of our society. It would be inconsistent with the values of our society to disregard the intent to not die. It's definitely a point that should be brought up before a judge. Second, this would allow for socially beneficial capital. When the trust funds are not being wasted, banks are using them to invest in many beneficial human activities. Someone could make the argument that deceased people are holding onto money and they're not doing anything good with it. It's like the Egyptian pharaohs - they took their gold with them to their graves and it's not being used to benefit anyone. This is not true with a personal revival trust because the trust funds create interest; they generate interest because they are being used for something. This would be good for society by achieving some of the goals of the rule against perpetuities. One main goal of why the rule against perpetuities was implemented centuries ago was to prevent the over-concentration (over several generations), of excessive amounts of wealth in one group of people. If PRTs are allowed, people can hold on to their wealth while in cryostasis, which would thwart, for instance, too much money being accumulated over several generations in a single family. Should reanimation become possible, there are always taxes? They've taxed you to death… now they can tax you to life! What I mean by that is that there can be a tax on the interest that a trust earns over time, and this is sort of the short term if a personal revival trust is earning interest while the person is in cryostasis, the government can - and probably will - impose a tax on it. The fact that they might have this inclination is actually a good thing, because it's one more reason for them to make this legal. Then there could be what I would call the reanimation tax. That means if you were reanimated, then, similar to an estate tax (where they take a certain percentage of your estate when you die), they can take a certain percentage upon your revival. I imagine that the government would want to do this – depending on how the economy is doing in a few hundred years.

Even though this is actually my favorite theory of PRT, I'm somewhat pessimistic about its chances; I think the likelihood of success is somewhat low, and it's really just very difficult to overcome the current conception of death in society, and I'm sure that people here are aware of that. And courts are just risk-averse, and not likely to go against majority sentiments unless it's something really, really big, or if it's a once in a lifetime court. Generally, courts are very conservative so it's unlikely that they are (even with all the good arguments I just made), quite there yet.

Contingent Beneficiary

Let's look at another theory; one that I believe has greater prospects. This is what I call the Contingent Beneficiary Exception Theory, [8] and is analogous to the unconceived, unborn beneficiary of which I referred to earlier. How this would work is a possibility of revival creates a contingent future interest deserving of legal protection. Similar to how the possibility of birth for an unconceived, unborn beneficiary does, and what this means is a cryonaut, a person in cryostasis, would be entitled to a court-appointed representative to protect his/her interests if the trust is ever challenged. Unfortunately it's also going to have the same limitations as an unconceived, unborn beneficiary. S/he will not be able to be the sole beneficiary. Basically, another person will definitely have standing to challenge the trust, and another person will probably have the right to draw on the funds. Despite these weaker protections, it does have some advantages compared to the other theory.

First of all it does not require the courts to view cryonauts as dead - we're not making an argument that this is an intermediate being or there is some potential for life, we'll take the law as it is. We're just going to make a legal argument. All we would be doing is giving legal protection to a future interest that may or may not come into existence - which is something that we already do. This is hardly groundbreaking; it's just a slightly new application of an old rule and probably the best candidate for a PRT. Because it is the best candidate, let's look at some more of its weaknesses.

Personal Revival Trust

Its main weakness is it has never been done - I touched upon this argument prior when I discussed the fact that this is speculative and an objection that people challenging trusts often make. 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. So that's the argument they're going to make, they're going to try to differentiate this from previous case law. The real problem with the speculation argument is that it places the burden on the wrong party. In the context of a trust, the obligation of the court, of the law, is to effectuate the intent of the trust maker, unless that intent is against public policy, or it's not possible to achieve the trust purposes. The burden is on the party challenging the trust. To challenge a trust one has to show something, the beneficiary doesn't have to show anything. They don't have to make the first argument. As this is a well-established rule, and something that we know very well from case law, courts would be more comfortable with this theory.

That brings us to the next topic: What are the alternatives to Personal Revival Trusts? How can we achieve the goals of a PRT - of getting a certain amount of money into the future and accessible if reanimation ever happens? Two ways of accomplishing this are Revival as a Condition Subsequent, and Trust for Purposes.

Revival as condition subsequent

Revival as Condition Subsequent differs from the Contingent Beneficiary Theory as there are no real rights that the court is going to protect. There isn't going to be a court-appointed representative to protect the cryonaut's interests, unlike within the Contingent Beneficiary theory. Another disadvantage is other beneficiaries will be able to draw on funds until revival. Now the advantage of the Revival as Condition Subsequent is, if you want to challenge this you can't until the condition occurs. If you have the condition in a trust that the trust "ends upon my revival," you can't challenge that condition because it hasn't happened, therefore no controversy. The validity of the trust itself could be challenged, but you cannot challenge that particular condition because it hasn't occurred and there's no controversy for the court to resolve. That is an advantage because if the trust itself is valid, then this is a viable option. It's facially valid with no need to stretch the law. As an example of how this would work, you would have some form of a dynasty trust, and a state that allows, lets say, a thousand-year statute of limitations or doesn't have a statute of limitations at all, you create an average trust that takes care of your descendants; you also have a condition in there that essentially says, if I'm back I want my money. No one will be able to challenge that condition until it occurs. What happens when it occurs? I think at that point society's going to be advanced enough to respect and honor the foresight these people had. There are going to be greater values at play more advantageous to cryonicists.

Trust for Purposes

Let's discuss a Trusts for Purposes; I guess it's another way of achieving some of these goals. There are two types of Trusts for Purposes; there is the Charitable Trust and the Honorary Trust. The Charitable Trust is akin to giving money to a library or public institution, or feeding the homeless or something similar; it's actually perpetual in every state. It does not require a specific beneficiary because the state's attorney general enforces it.

Now there is someone who's looking out for the common good of the people. Then there is the Honorary Trust, which is not really a trust but is subject to the rule against perpetuities, even in post-Rule Against Perpetuities jurisdictions. An example of this would be something like a trust for a pet - it's technically not a trust, it's like an optional trust where the trustee has the option of either carrying out the intent of the trust creator, or just giving up the money. One main exception to this rule against perpetuities is the trust for the perpetual care of graves. This would obviously have to be perpetual – so the Honorary Trust is perpetual; something we're going to be able to use in achieving PRT goals.

Piggyback Trust

One way of using Charitable Trust to achieve these goals is what I would call a Piggyback Trust; you piggyback a condition subsequent onto a Charitable Trust. This has certain advantages: a) It's perpetual everywhere so it doesn't matter in what state you reside; and b) It can be terminated on the grounds the purpose has been achieved. There is always going to be a need for charity, no matter how much progress we make. The problem is that piggybacks are that you're not usually allowed to piggyback a non-charitable purpose onto a charitable trust however; I think a strong argument can be made that in the cryonics context it could survive a challenge because it's known the condition is not implicated until the cryonaut is revived, at which point society can be expected to be more deferential to cryonaut's rights. As an example, if you create a perpetual trust for, say helping the poor, and you have that condition in there, and in one hundred years you are revived and want your money back, it's likely that a court would terminate the trust and give you your money, for the simple reason you did some good over one hundred years and you had the foresight to take care of yourself to elect cryonics in the first place. This is not the strongest argument that can be made, but it might work.

Honorary Trust

Finally there is the Honorary Trust, which is the trust for the care of a grave. The idea is that the grave would actually be a cryostat or dewar (pod), so you would attach a condition subsequent terminating the trust upon revival with the trust funds going to the person who is revived. You would have a trust for the maintenance of your cryostat or dewar and its surroundings, and it would be terminated when you're brought back. There are obvious limitations, such as how much money could you put into such a trust? You can't put a billion dollars for just the maintenance and care of a grave. Courts will not allow that. But you could possibly fund the trust with one hundred thousand dollars; a court would allow a reasonable amount. An Honorary Trust would be facially valid, but again, this wouldn't be controversial, in fact, the Cryonics Institute in Michigan [9] is technically categorized as a cemetery - so are funeral homes, thus it would dovetail with existing law that in certain states and wouldn't be too revolutionary - which courts dislike.

To reiterate, the Ascertainable Beneficiary Requirement can be overcome to a certain extent, and I am optimistic that with time, cryonauts will be able to have full PRTs. As Terasem states, "Lives Are Good", and society and the legal system already recognize this. There is a historical momentum in expanding the idea of what being human is and what rights exist; I think we're going to get there.

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Endnotes & Citations

[1] Cryostasis - the reversible cryopreservation of live biological objects.
http://www.reference.com/browse/wiki/Cryostasis_%28clathrate_hydrates%29 March 22, 2011 4:23PM EST

[2] Personal Revival Trust – any type of trust that is set up to hold assets for a cryogenically person until they are revived. These trusts might also be called other names, such as dynasty trusts, cryonic trusts, or asset preservation trusts, but the concept is the same.
Milburn, John F. "Personal Revival Trusts" Newsletter: Professional Legal Assistors Jan 2010. 2.
http://biz-usa.com/uploads/January_2010_-_new_address.pdf March 22, 2011 4:32PM EST

[3] Rule Against Perpetuities – "[T]he common-law rule prohibiting a grant of an estate unless the interest must vest, if at all, no later than 21 years (plus a period of birth) after the death of some person alive when the interest was created. The purpose of the rule was to limit the time that title to property could be suspended out of commerce because there was no owner who had title to the property and who could sell it or exercise other aspects of ownership. If the terms of the contract or gift exceeded the time limits of the rule, the gift or transaction was void. Cf. RULE AGAINST ACCUMULATIONS"
Garner, Bryan A. Black's Law Dictionary. 3rd ed. Minnesota: Thomson West, 2006: 628.

[4] Ascertainable Beneficiary Requirement – (Ascertainable Standard) - a standard relating to an individual's health, education, support, or maintenance within the meaning of Section 2041(b)(1)(A) or 2514(c)(1) of the Internal Revenue Code of 1986, as in effect on [last amended March 9, 2011].
http://www.law.upenn.edu/bll/archives/ulc/uta/2004final_rev.htm#TOC1_4 March 23, 2011 4:39PM EST

[5] Unborn Beneficiaries Exception – [R]efers only to a beneficiary of a trust as defined in the Uniform Trust Code. In addition to living and ascertained individuals, beneficiaries may be unborn or unascertained. Pursuant to Section 402(b), a trust is valid only if a beneficiary can be ascertained now or in the future.
Restatement (Third) of Trusts Section 48 cmt. c (Tentative Draft No. 2, approved 1999); Restatement (Second) of Trusts Section 126 cmt. c (1959).
http://www.law.upenn.edu/bll/archives/ulc/uta/2004final_rev.htm#TOC1_4 March 24, 2011 1:23PM EST

[6] Trust for Purposes – A trust that is not for the benefit of a human beneficiary and is not a charitable trust. Such trusts are normally invalid as they offend the beneficiary principle. Exceptions include trusts for the care of specific animals (Re Dean ( 1889 ) 41 Ch D 552), trusts for the provision and upkeep of tombs and monuments (Mussett v Bingle [ 1876 ] WN 170; Re Hooper [ 1932 ] 1 Ch 38), and trusts for the saying of masses (Re Hetherington [ 1990 ] Ch 1). The categories of purpose trust that have been recognized by the courts will not be extended (Re Endacott [ 1960 ] 2 Ch 232).
http://law.jrank.org/pages/17025/purpose-trust-(non-charitable-purpose-trust-trust-imperfect-obligation).html March 25, 2011 10:44AM EST

[7] The Fertile Octogenarian – The notion that any male or female regardless of their age, infirmity or physical deficiency, is capable of having a child. For instance, a child would have to wait until their mother and father have deceased so that they could receive a property title since he/she may still be able to acquire a sibling. This unnecessarily tied up the property and most states have passed laws to resolve this issue.
http://www.legal-explanations.com/definitions/fertile-octogenarian.htm March 25, 2011 10:29AM EST

[8] Contingent Beneficiary Exception Theory – "[T]he "Undead Contingent Beneficiary" theory is analogous to an unconceived unborn beneficiary. The theory posits that the possibility that one day the cryonaut will be revived creates a contingent future interest deserving of legal protection and a court-appointed representative to protect that interest."
Igor Levenberg, Note, Personal Revival Trusts: If You Can't Take It With You, Can You Come Back To Get It? 83 SUNY St. John's L. Rev. 1469 (2009).

[9] Cryonics Institute – Formed in 1976 by Robert Ettinger and located in Clinton Township, MI, the Cryonics Institute "offers cryostasis services: careful preparation, cooling, and long-term patient care in liquid nitrogen."
http://cryonics.org/overview.html March 25, 2011 11:00AM EST


Igor Levenberg

Igor Levenberg is a 2010 magna cum laude graduate of St. John's University School of Law in Queens, New York and an Associate with the NYC firm of Duval & Stachenfeld LLP.

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