Cryogenics and Revival Trusts – Really?

We live in interesting times. Perhaps they are even a bit creepy times. Currently there is a growing interest in revival trusts. A revival trust is one which holds, or financially supports, a decedent’s cryogenically preserved body, or a decedent’s head (brain) with the intent that centuries from now, their body or brain can be revived with the advancement of medical science.

The most famous person to engage in cryogenics was the late, great, baseball player Ted Williams whose head was surgically removed from his body and then both were then cryogenically frozen in liquid nitrogen. Allegedly Ted and two of his children entered into a ‘family pact’ (signed on the back of a napkin, no less) to have their bodies cryogenically preserved upon their deaths. Their stated goal was to have their brains ‘brought back to life’ generations into the future when medical technology has advanced to point when Ted’s brain function can be restored. (Family litigation later ensued when Ted’s daughter from his first marriage challenged the validity of the ‘pact’ since Ted’s Will had instructed his remains to be cremated and his ashes distributed over the Florida Gulf. Ted’s elder daughter settled for money from his estate.)

Cryonics is the science that uses ultra-cold temperature to preserve human bodies with the intent of restoring good health when medical technology has evolved to the point that is is possible to bring the body or brain back to a sapient existence.

A revival trust’s assets are dedicated to sustaining the cryogenically preserved body and that the decedent’s wealth will then be available to them on their future revival. Thus, a revival trust is intended to last for hundreds, if not thousands, of years, awaiting the advancement of medical science that can restore the cryogenically preserved body. Practically speaking then, a revival trust is a dynasty trust that can now be created in a handful of states, e.g., Delaware, South Dakota, that have formally repealed their rule against perpetuities. A revival trust is also what is called a purpose trust in the sense that it does not have a living trust beneficiary who can enforce the trust terms in court or hold the trustee accountable for breach of fiduciary duties. A common type of purpose trust used today is a pet trust, but its duration is highly restricted, e.g., 21 years in Michigan.

While a revival trust is a novel estate planning tool that is gaining some interest, it also raises many practical, technical and theoretical questions, like the following:

Does the individual’s durable power of attorney for health care address their wish to be cryonically preserved?

Will hospitals and physicians respect the individual’s wishes to be cryonically preserved? [Ted Williams’ was intentionally decapitated to facilitate his brain’s cryonic preservation.]

Does the individual’s patient advocate possess the unilateral authority to move the body to another medical center that will respect the individual’s desire to be cryonically preserved? [Ted William’s body and brain had to be transported from Florida to Arizona, at a cost of $200,000, where the decapitation and cryogenic preservation took place.]

Does a designated Michigan funeral representative under Michigan’s recent statute possess the authority to make a cryogenic preservation decision? [Recall that Ted’s ‘back of the napkin’ pact with his two children overrode his cremation wishes in his Last Will.]

If the individual’s body or brain is to be restored in the future, will he/she be viewed as the same ‘person’ by the IRS, when the revival trust terminates, and its assets are returned to their ‘restored’ person?

If the revival trust is created and funded after the individual is legally declared dead, will he or she be considered a new ‘person’ and have their same Social Security number?

Since a revival trust is a purpose trust, who is assigned the responsibility to enforce the trust’s terms?  A pet trust is a purpose trust where some states delegate to state officials the responsibility to monitor and enforce the trust in court, much like a charitable trust. Does the state’s Attorney General Office have the automatic authority to monitor and enforce the revival trust’s terms? Or the authority to challenge the revival trust’s duration?

Some purpose trust statutes, like Michigan’s, give the probate judge the authority to reduce the amount of assets that are set-aside in the trust to carry out its stated future purpose, e.g., too much money is set aside and held in trust to maintain a pet for the balance of the pet’s life expectancy, can be judicially removed from the pet trust. Will that same judicial authority exist to unilaterally reduce the amount of assets that are intended to be set aside in a revival purpose trust for use centuries from now?

Who is the trustee? Since a revival trust can be expected to exist for thousands of years, naming an individual to serve as trustee makes no sense. While a corporate trustee will probably be named for the revival trust, a corporate trustee will not want to make the difficult decision when, and how, the trust creator’s body or brain is to be revived. Who will act as the trust director who makes the decision to attempt to revive the decedent’s brain or body?

Who monitors the trustee’s performance if financial assets are held in the revival trust with the intent that they will be available in the future when the trust creator’s body is ultimately revived?

Since irrevocable trusts are taxed so heavily, should the trustee be authorized to distribute trust income to other beneficiaries, or perhaps to charities that conduct research in cryopreservation, in order to avoid accumulating income in the revival trust and exposing that income to higher marginal federal income tax rates?

Should there be an end-date used in the revival trust, when it is terminated, and its assets are finally distributed? What is an acceptable period to await the advance of medical science? It is possible that revival will never be an option.

Who decides when medical science has advanced to a point that they conclude that the cryopreserved body or brain can be successfully revived? Physicians, the trustee, a trust director, theologians?

What happens if the cryopreserved body is revived too early? Or what if an act of God happens to the cryonic facility and the preserved body or brain is destroyed?

If the thought is that at some time the trust will terminate because the trust creator’s body cannot be revived, will the remaining assets be distributed to trust creator’s then heirs at law? If so, there could be thousands of trust remainder beneficiaries if the trust terminates a thousand years from now, all entitled to receive a nominal amount from the terminated trust.

What we know is that there is a growing interest in society today in life extension and age reversal. Cryonics is just one more way in which an individual’s life might be extended. A revival trust is simply another legal tool, much like a pet trust, that is used to maintain the cryopreserved body and ultimately provide access to wealth once that body (if ever) is revived.

Many questions associated with cryonics and revival trusts exist, but with very few answers. It will be interesting to see if revival trusts are just a flash or are a serious estate planning option for individuals. Strange times for us all.