USA – NEW YORK Law and Practice Contributed by: John M Teitler, Nancy A Murphy, Constance E Shields and Von Sanborn, Teitler & Teitler LLP
9. Planning for Non-Traditional Families 9.1 Children Generally, a non-marital child is the child of his or her mother, and a non-marital child is the child of his or her father if a court during the father’s lifetime makes an order of filiation or the father has signed an instru - ment acknowledging paternity. A non-marital child may also be deemed a child of the father if parentage is shown by clear and convincing evidence, such as openly acknowledging the child as his own. New York recently legalised gestational surrogacy agreements in which the surrogate has not contrib - uted the egg used in conception. A child born under such a surrogacy agreement, assuming it complies with New York law, is a child of each intended par - ent. To ensure a surrogacy agreement is lawful in New York, several requirements must be met by the sur - rogate or intended parent, including United States citizenship or lawful permanent residence status and New York residence. In addition, if the proposed surro - gate has a spouse, such spouse may have to provide informed consent. Traditional surrogacy agreements (ie, the surrogate contributes the egg) remain unenforceable in New York. Notwithstanding the rules under the law regarding the definition of a child, a testator may exclude any child from taking any share of the testator’s estate.
9.2 Same-Sex Marriage New York and the federal government recognise same-sex marriage.
10. Charitable Planning 10.1 Charitable Giving
The United States and New York provide a number of charitable giving opportunities, including tax incen - tives. They are complex and require careful considera - tion. Giving to qualified charities will usually reduce income and estate taxes, subject to certain limitations. 10.2 Common Charitable Structures Typically, US/NY lawyers use several charitable giv - ing techniques, including charitable lead trusts, donor- advised funds and private foundations. While creating a charitable structure may have income and estate tax benefits, often, there is a reduction in control and use of the assets.
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