In Re Estate Of Kievernagel

83 Cal.Rptr. 3d 311 (2008)

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Nature of the Case

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Facts

H and W were married for 10 years prior to H's death. They contracted with the Northern California Fertility Medical Center, Inc., to perform in vitro fertilization (IVF) to allow Iris to conceive. The center required H to store a sperm sample under this program in case his live sperm could not be used on the day of insemination. The center required an IVF backup sperm storage and consent agreement. W completed the Agreement and H signed it. The Agreement provided that the sperm sample was H's sole and separate property and he retained all authority to control its disposition. H could donate the sperm to W or discard the sperm sample. The box indicating the sperm sample was to be discarded was checked, and H initialed it. The Agreement also provided the sperm sample was to be discarded upon divorce. W signed, acknowledging the sperm sample was H's sole and separate property. H died. W was appointed administrator of H's estate. W petitioned to obtain a vial of H's frozen sperm. The fertility center would not release it without a court order. D objected to the distribution. They contended it was contrary to H's express wishes that he did not wish to father a child posthumously. The court found that the Agreement evidence the intent of both H and W to discard the sperm upon H’s death. There was no evidence they ever discussed changing the provisions of the Agreement. W appealed.