Five Questions to Ask Your Estate Planning Attorney During Your Fertility Journey
Fertility treatment comes with plenty of questions. What comes next? What needs to be signed? Who needs to be paid? Estate planning can feel like something to address once you know how the rest of the journey will unfold. But you don’t have to wait until you’re expecting a baby to put useful protections in place. An estate planning conversation can address who would act for you now, how your wishes about stored reproductive material are documented, and how your plan can provide for the family you’re working toward. You don’t need to arrive with every answer. These five questions are a good place to start.
1. Who could make decisions for me if I couldn’t make them myself?
Start with the people you would trust to handle your health care and finances if you became unable to do so. Those responsibilities are different, and the same person doesn’t have to take on both. Ask your attorney what authority each person would need, when it would begin, and who would serve as a backup. In North Carolina, a health care power of attorney allows you to name an agent to make health care decisions for you when you are unable to make them yourself. Someone who is excellent at advocating for you in a hospital might be the best fit for this role. A financial power of attorney allows you to name an agent to manage your financial matters. If you have ongoing treatment or storage expenses, discuss how an authorized person could handle those payments. Authority to pay a clinic bill, however, should not be confused with authority to consent to treatment or decide what happens to stored embryos.
2. How should my estate plan work with my fertility clinic agreements?
Bring the actual documents you’ve signed. Your memory of checking a box a few years ago is a starting point, but your attorney needs to see what the agreement says. Be specific about the circumstances you want addressed. Would your instructions differ if one person died rather than both? If continued storage is your preference, who would handle the payments and communication? What should happen if your preferred option is unavailable? How your stored genetic materials is included in your estate plan is heavily dependent on the other agreements you signed when you created the stored genetic material. For more information on why your fertility clinic agreements aren’t a substitute for an estate plan, see our companion article.
3. How can we plan for a child who isn’t here yet?
If you know you’re going to try to have a child, then you also know there’s a possibility you will have a child as your heir. You can discuss future children before pregnancy or birth. Ask how your will or trust would include children you may have later and what information would need to be updated when a child arrives. That conversation should include who you would want raising your child if no parent were available to do so. Discuss your choices with your partner. Talk with those people before naming them. Your sibling might be your obvious choice, but are they willing and able to take on the responsibility? Who would step in if their circumstances changed? If you are using a donor or gestational carrier, ask how estate planning should coordinate with the legal work establishing or confirming parentage. A guardian nomination does not establish a parent-child relationship. Your estate planning attorney and family formation attorney should understand the same family building plan. If you want to address a child conceived or born after your death using stored reproductive material, say so explicitly. That raises additional questions about parentage and inheritance that deserve individual legal analysis.
4. How would money be available for my child’s care?
Choosing a caregiver is only part of the plan. Ask who would manage the money intended to support your child, how that person would access it, and what instructions would guide its use. We don’t recommend naming the chosen caregiver, or guardian, as the direct recipient to receive the money you want used for your child. A trust can provide a structure for a trustee to manage funds for a child’s benefit, including expenses such as housing, education, and health care. That trust can also provide for additional expenses that fit your aspirations for your child, like providing for a wedding, car, or home. The person managing those funds can be different from the person raising the child. Your attorney can help you decide whether that arrangement makes sense and how the two people would work together. Bring your current beneficiary designations, too. For assets such as an IRA, the beneficiary designation generally controls who receives the funds, even if your will says something different. Ask how your accounts and life insurance should coordinate with the plan, particularly before naming a minor child directly. Syndication For intended parents in a surrogacy journey, also bring the gestational surrogacy agreement. Ask how ongoing contractual expenses would be addressed if you became incapacitated or died during the pregnancy, and what coordination is needed with your family formation attorney and escrow provider.
5. What should we do now, and what should trigger another review?
Your fertility journey may not follow the timeline you first imagined. Ask your attorney to distinguish the decisions you can make now from those that need another look as your circumstances change. Health care and financial proxies can be named before you know whether or when you will have a child. Other parts of the plan need to reflect developments such as storing reproductive material, signing a donor or surrogacy agreement, pregnancy, birth, or completion of parentage proceedings. Changes in your relationship, finances, chosen proxies, or state of residence are also reasons to check in. If you are unsure what you want for your remaining embryos, be honest about that. Your attorney can help identify the decisions your current agreements already address, the questions that remain open, and the consequences of leaving those questions unresolved. Before the meeting ends, ask for clear next steps: which documents need to be signed, which beneficiary forms need attention, who should receive copies, and when to contact the attorney again. A thoughtful plan needs to be accessible to the people expected to use it.
What to Bring to the Conversation
Gather what you have; you don’t need a perfectly organized binder to begin:
- Existing wills, trusts, powers of attorney, and advance directives.
- Fertility clinic consent forms, storage agreements, and disposition instructions.
- Relevant donor agreements, surrogacy agreements, and parentage or adoption orders.
- A basic list of assets, debts, life insurance, and current beneficiary designations.
- Names of potential decision makers, guardians, and backups, along with questions you haven’t resolved.
Let your attorney know where you are in the process and whether a signing date, transfer, or due date is approaching. That context helps make the conversation useful to your circumstances now.
