Estate Planning Requirements Under New York’s Child-Parent Security Act
Under New York’s Child-Parent Security Act (CPSA), which legalized compensated gestational surrogacy in 2021, intended parents must meet specific estate planning obligations to ensure legal protections for both the child and the surrogate.
Key estate planning requirements
Intended parents must execute a valid last will that:
- Contemplates support for the child (e.g., naming a source of funds for the child’s care, education, and living expenses).
- Identifies a guardian for the child in the event of the intended parents’ death or incapacitation. This ensures the child is raised by someone chosen by the parents.
- Names an Executor to carry out the parents’ obligations under the Gestational Carrier Agreement (GCA) and to manage any estate funds for the child.
- Purpose of the Will:
The will serves as a legal safeguard for:
- The gestational surrogate, ensuring they are paid and that their rights and responsibilities are honored.
- The child, ensuring they are cared for and protected under the parents’ chosen guardian.
- Why It’s Required:
Without a will that meets these criteria, there could be uncertainty about:
- Who will pay the surrogate.
- Who will care for the child if the parents are no longer able to.
- How the child’s financial and personal needs will be met.
- Best Practices:
- Work with an estate planning attorney experienced in surrogacy law to draft a will that complies with CPSA requirements.
- Ensure the will is specific and detailed about the child’s needs and the surrogate’s compensation.
- Keep the will up to date and accessible to the Executor and relevant parties.
In summary:
Under the CPSA, intended parents in New York must have a last will that explicitly provides for the child’s care, names a guardian, and appoints an Executor to manage obligations under the GCA. This is a statutory requirement to protect both the surrogate and the child in the event of the parents’ death or incapacity