When surrogates and intended parents first form a partnership, the prospect of welcoming a child into the intended parents’ lives is exhilarating. With this excitement comes a need to talk about planning for the possibility of a tragedy befalling the intended parents; much confusion can be avoided during a crisis if both the surrogate and intended parents engage in estate planning.
Although estate planning is never a requirement, when it comes to assisted reproductive technology (ART), it is recommend that surrogates and intended parents address estate planning at the appropriate times. For the intended parents, this is before the transfer occurs; for the surrogate, this is at approximately 5 to 6 months of gestation.
Laws around estate planning differ from state to state, with some states lacking clear legal guidance around ART. As a result, it is important to work with a lawyer who is familiar with your state’s laws regarding both surrogacy and the transfer of legal authority over children upon the death of a parent.
This includes knowing about appropriate paperwork. Only certain documents expressly authorized by each state’s statutes can successfully transfer that legal authority, and a surrogacy agreement does not suffice in most states, including Minnesota. Therefore, to have an enforceable transfer of guardianship for either party — surrogate to intended parents or intended parents to their designated guardians — upon their respective deaths and before transfer of parental rights, it typically must be set forth in a properly executed will or other statutorily-authorized document.
Within a will or other statutorily-authorized document, it should be clearly stated whether the child in utero is the child or descendant of the person making the will — whether surrogate or intended parents. This will ensure that the child doesn’t accidentally, by rules of normal statutory construction, get included in the wrong family or trust and helps to avoid other unintended financial consequences in the transmission of assets following a death.