Captain America’s Estate Planning Dilemma

I was never a big comic book fan.  However, when I was fourteen I spent the entire summer in Central Oregon.  In search of entertainment, I discovered Captain America at a local comic book shop.  I declared Captain America to be my favorite comic.  Although at the time there was a Captain America movie, it was a “B-List” movie at best and it was impossible to predict the enormous appeal and box office success that the current Captain America series of movies has become today.  Yes, I’m claiming to have been on the “Captain America bandwagon” before it was “cool.”  Once again, I’m a trendsetter.

As with many subjects, I view Captain America as an adult with a different prism than when I was a teenager.  In particular, the storyline where Captain America heroically crashes the airplane carrying nuclear weapons bound for the United States into the ice, is frozen, and is regenerated seventy years later causes me to think about the unique estate planning dilemmas that Captain America would face.  This might sound like a classic, absurd theoretical comic book debate from an episode of The Big Bang Theory, but there are actually thousands of people who hope to become real life “Captain Americas.”

According to Wikipedia, “cryogenics” refers to the branches of physics and engineering that involve the study of very low temperatures, how to produce them, and how materials behave at those temperatures.  “Cryonics” is the emerging medical technology of “cryopreserving” humans and animals with the intention of future revival, i.e., the attempt to “Captain America” one’s self, if we may use “Captain America” as a verb.  The dispute over Hall of Fame Red Sox slugger Ted Williams’ estate brought a national spotlight to this concept.  As some estate planning attorneys have realized, this relatively new idea could have a profound impact upon estate planning.

Traditionally we take the view that once we die, we no longer need our assets.  We therefore take the time and effort to establish legally recognized plans that will distribute any assets that we might have remaining at the time of our deaths to our loved ones or for the benefit of our favorite charitable causes.  There is often a joke about estate planning that in the ideal world, you would spend your last penny as you take your last breath and therefore wouldn’t need any estate planning!  However, with cryonics, you might need your assets long after you pass away.

First, there are costs necessary to initiate and maintain the cryopreservation process.  Such expenses include medical supplies, chemicals, facilities, electricity, and staffing.  It is necessary that these expenses are paid for years after your death.  Relying on your surviving loved ones to continue to fund these costs long after your death is not a practical solution, especially if future technology will not permit the hope of future revival for decades or even centuries.  At least one organization, ALCOR, has developed a method for financing the cryopreservation process after one’s death.

In the early 1990s, ALCOR consulted numerous estate planning experts to determine if it were possible to create a common trust what would be used to fund the cryopreservation process for cryonics patients long after their deaths.  ALCOR finally found an attorney in Arizona who created the “ALCOR Patient Care Trust.”  The idea is that a person interested in cryopreservation through ALCOR will transfer a specified amount of assets into the Patient Care Trust, either during life or upon death – most commonly through a life insurance policy.  The Patient Care Trust will then use those assets to fund the expenses of the cryopreservation process until the person is revived, presumably years into the future.  Although none of my legal drafting materials feature such a trust, you can read the ALCOR Patient Care Trust on its website,  ALCOR claims that it invests the trust assets in such a way as to use the income off of its investments to fund the cryopreservation process. 

Second, although Captain America was financially supported by the government upon his revival, you might not be so lucky.  If you are to be revived decades or centuries into the future, you probably want to make sure that you maintain a nest egg of assets so that you do not wake up to poverty, hunger, and homelessness.  Should your estate plan leave all or a portion of your estate to your future self?  There are various organizations that claim if you invest a portion of your estate in a certain manner, with the magic of compound interest, by the time you are revived you will have more than enough money to support yourself! 

Both of these aforementioned kinds of trusts raise another interesting issue: can a trust last indefinitely?  Under the common law, there is a limit as to how long a trust may last.  This limit is known as the “Rule Against Perpetuities” (“RAP”) and has confused law students for generations.  Some states, such as Alaska, have eliminated the RAP and allow trusts to continue forever.  Other states, such as Arizona, allow exceptions to the RAP under certain conditions.  The ALCOR Patient Care Trust was drafted under Arizona law and was cleverly structured in such a way as to fall within Arizona’s exception to the RAP.  California, on the other hand, does in fact have a RAP and thus would not be the ideal jurisdiction to govern cryonics trusts. 

Whether or not you believe in the merits of cryonics, the topic does demonstrate the impact of science on estate planning and the unique practical and legal challenges that certain medical issues or concepts can create.

KRASA LAW is located at 704-D Forest Avenue, PG, and Kyle may be reached at 831-920-0205.

This article is for general information only.  Reading this article does not create an attorney / client relationship.  Before acting on any of the information presented in this article, you should consult a qualified attorney licensed to practice law in your community.