Parenthood: Estate Planning Essentials for Families Using Surrogacy and ART

In the latest episode of The Surrogacy Space podcast, I had the pleasure of sitting down with my esteemed colleague, Lauren Barkan, a Wills, Trusts & Estates attorney at Greenspoon Marder. Lauren brought invaluable insights into an often overlooked, but critical part of raising a family through surrogacy or third-party assisted reproduction: estate planning. Whether you’re expecting your first child through IVF or expanding your family via surrogacy, estate planning is not just about wealth; it’s about protection, clarity, and peace of mind.

Why Estate Planning Matters Even Before the Baby Arrives

As Lauren emphasized, estate planning is also about making thoughtful, proactive decisions to protect your loved ones, including unborn or posthumously conceived children in the case of the unexpected. Without the proper documents in place, your family could face complex legal issues in an already emotional situation.

Key Documents Every Family Should Have

A comprehensive estate plan should include, but is not limited to:

• Wills and trusts to designate beneficiaries and guardians

• Durable powers of attorney to manage finances if you’re incapacitated

• Healthcare surrogates to make medical decisions on your behalf

These tools work together to ensure your wishes are honored, your family is protected, and your assets are distributed according to your intentions. A consultation with an experienced estate planning attorney is critical to ensure you have the proper estate planning documents in place for the ultimate legal protection.

Special Considerations for Frozen Embryos and Genetic Material

For families using assisted reproductive technologies, one crucial estate planning question is often not considered is - what happens to frozen embryos or genetic material if something happens to you? In Florida, genetic material like embryos is legally considered property, not people. That means your will must explicitly state who has the right to use, store, or dispose of them. Without clear instructions, surviving partners or family members may face painful legal battles, or find their wishes blocked entirely.

Lauren walked us through a compelling case that highlights these challenges. In Steele v. Social Security, a child conceived posthumously with the father’s frozen sperm was denied Social Security benefits because the father’s estate plan didn’t account for posthumous conception. The court ruled the child was ineligible, underscoring the importance of using precise language in estate documents when reproductive technology is involved.

How Changing Laws Are Raising the Stakes

The legal landscape surrounding reproduction is evolving rapidly. With some states now recognizing embryos as legal persons, and others reshaping reproductive rights post-Roe v. Wade, estate planning has become even more complex.

Plan Ahead

Estate planning for families using ART and surrogacy is not a luxury—it’s a necessity. By addressing key issues like the ownership of genetic material, syncing legal documents, and adapting to shifting laws, you can protect your reproductive choices and give your future children a more secure start.

Whether you’re just beginning your journey or deep into the process, now is the time to ensure your estate plan is thoughtful, complete, and aligned with your family-building goals.

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Learn more about Marla Neufeld at https://www.gmlaw.com/attorneys/marla...

To contact Marla, email marla.neufeld@gmlaw.com.

Social Media Handle(s):

Instagram: @marlasurrogacylaw

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Guest Speaker Contact:

Lauren Barken

Greenspoon Marder LLP

Wills, Trusts, & Estates Attorney

Lauren.Barkan@gmlaw.com

To learn more about Lauren visit

https://www.gmlaw.com/attorneys/laure...

Social Media Handle(s):

 / lauren-barkan-esq-llm-a2b0508  

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Describe your legal practice area

Where did you go to law school?

How long have you practiced T&E?

Why did you choose to practice T&E?

Why is an estate plan important for new and existing parents?

What specific documents should be included in an estate plan for a family with a newborn or existing children?

What happens if both parents pass away unexpectedly? How does the estate plan address this scenario?

What happens if parents die or become incapacitated and there is no will? What happens to the baby? What happens to the property?

How often should we review and update our estate plan

Recent case, Steele v. Social Security case –

    1) can some born posthumously inherit from their deceased parent? If     that is what parents would want, how do they make those accommodations in estate plan?

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