If you are a parent or intend to become one, estate planning is an important step to take, as it allows you to document your wishes for your children’s future care – helping to avoid potential legal action or prolonged custody battles that can arise among family members when someone dies without having a valid Will in place. A key provision in estate planning for parents and parents-to-be is naming someone to serve as guardian. The guardian is the person who would have legal and physical custody over minor children in the event the parents were to die prematurely.

For people who want to grow their families through surrogacy and plan to enter into Gestational Surrogacy Agreements in New York state, a new law actually requires the intended parents to have Wills in place before an embryo is implanted in the surrogate. To comply with New York’s Child-Parent Security Act, intended parents’ Wills must name both a guardian and an executor, and must specifically give the executor the power to satisfy any outstanding obligations the intended parents still owed to their gestational carrier.

Naming someone as a guardian for minor children in your Will does not obligate them to serve in that role, so it is important to name someone you believe shares your values, is capable of serving, and is willing to do so, should the need arise. Creating a Will with guardianship provisions is especially important for parents whose children were conceived through surrogacy arrangements. That’s because the traditional assumption in many states is that a child’s natural guardian is the woman who gave birth. The New York statute’s requirement to name a guardian lowers the risk of a surrogate or gestational carrier claiming she has the right to guardianship after the death of the child’s legal parents.

If you intend to use assisted reproductive technologies to start or add to your family, talk to your estate planning attorney to make sure your legal documents comply with applicable laws and, perhaps more importantly, that the documents accurately reflect your goals and wishes for your children. To learn more, contact The Estate Planning & Legacy Law Center today!