A billionaire invests in human cryopreservation so that his head may be preserved in hopes of his entire person being revived later. His head, and his favorite dog, will be preserved at minus 320 degrees Fahrenheit in a cylindrical tank filled with liquid nitrogen in the hopes that the advanced medical technology of the future will allow for their reanimation. And no, the technology does not currently exist to reanimate a cryogenically preserved human or dog, but cryogenics companies are optimistic that it will be possible in the future.
As part of his revival plan, the billionaire consults with an estate planning attorney. He would like a perpetual trust to be established in the state of South Dakota, so that he and his dog need not be poor in the future. The perpetual trust can shelter a large chunk of money (often transfer tax-free) for centuries, in relative secrecy. Because of the climate crisis, our unfrozen billionaire may awaken to find himself in a world without Greenland or Antarctica. Important megacities will be gone, including New York City, London, Shanghai, Mumbai, and Bangkok, and so he needs to buy a new house. Or two.
Planning for immortality in a bleak apocalyptic future has become big business for an unknown number of billionaires who also appreciate the importance of maintaining status as a “have” (instead of a “have not”). This billionaire hypothetical (which may not actually be hypothetical—I will leave it to you to figure out) raises a myriad of rarely discussed ethical issues for both estate planners and legislators. Estate Planning Ethics for the Apocalypse, by Carla Spivack, published in 2023 in the ACTEC Journal, seeks to open this important conversation.
Spivack centers the issue of climate conscious lawyering (or a legal practice that takes into account the impact of the law and legal processes on the environment, usually with an eye towards sustainability for estate planners: “Worst case scenarios envision the collapse of society, a Hobbesian war of all against all. The Trusts and Estates Bar is uniquely positioned to intervene at both ends of the wealth spectrum to alleviate the worst outcomes of climate change that are intertwined with wealth inequality.” We exist in a time when this conversation is particularly relevant. A clean, healthy, and sustainable environment was acknowledged as a basic human right by UN Human Rights Council resolution 48/13 in October 2021, and recognized by the United Nations in July 2022. In March 2023, the American Bar Association partnered with many other bar associations at the Conference of the Parties to the U.N. Framework Convention on Climate Change to encourage climate conscious lawyering.
Climate conscious lawyering is truly about empathy, compassion, and prioritizing the needs of the larger community over the individual. It is about community mindfulness of wastefulness that may eventually lead to scarcity and hardship. And yet, there is an obvious tension for estate planners, with higher net worth clients largely focused on intergenerational asset protection and preservation. Strategic estate planning for wealthy clients in times of social and political turmoil, and climate catastrophe, with uncertainty as to what tomorrow will hold, is essentially a game of resource hoarding.
Attorneys must understand the risk associated with trust investments and the possibility of insurance to protect against downside exposure. By the same token, estate planners have been engaging with the foreseeability of climate catastrophe for some time. Prof. Spivack’s article takes this a step further, however, to ask whether it is time for lawyers to reconsider the ethics of dispensing advice that costs the environment and society too much. Does advice to engage in “lawful but awful” behavior matter in the context of climate conscious lawyering? For the wealthy but eccentric client who wants to establish a trust to protect their frozen head, construct oceangoing floating cities, build The Clock of the Long Now, clone a dinosaur, or manage the Repository for Germinal Choice, perhaps it is the job of the climate conscious lawyer to explain the way in which these projects either contribute to man-made climate destabilization or are the product of the same willful blindness that has landed us in our present position. Or perhaps it is not the role of the attorney to do so: “With respect to the super wealthy, does climate conscious lawyering require a harder conversation about personal consumption? Who’s going to tell Jeff Bezos he can’t have his rocket?”
Estate Planning Ethics for the Apocalypse will also hopefully spark a conversation about the role of perpetual trusts in our uncertain future. The powerful wealth transfer tool known as the perpetual or dynasty trust is designed to pass property down from one generation to the next, with the goal of operating indefinitely. The NFP 2020 Dynasty Trust Rankings rates twelve states as desirable perpetual trust jurisdictions—only possible because of a statutory Rule Against Perpetuities exceeding 110 years (in contrast with the common law’s limitation of unvested property rights to a life-in-being plus 21 years). Climate change raises important questions about perpetual restraints on, or accumulation of, property that have already been raised in the context of perpetual conservation easements. Just as conservation easements allow current generations to perpetually define land use in a way that burdens future generations, perpetual trusts are arguably a form of fiscal conservation that burdens both beneficiary and community. Climate change will require flexible and resilient systems to facilitate adaptive responses, and perpetual structures such as trusts and easements lock in one person’s preference under current conditions without accounting for inevitable change.
For another review of Estate Planning for the Apocalypse see Allison Tait, The Wealth Planning Climate, JOTWELL (August 2, 2024).
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