Inheritance and Estate Planning Advice for Inheritors in Non-Traditional Families

If you created your family non-traditionally, or are the product of a non-traditional family-building process, get the information you need to ensure you and your children are legally protected.

An interview with Tabitha Koh, managing partner at Bouneff, Chally & Koh, a boutique law firm providing legal care for families of all kinds and at all stages.

The BEST kid's book for non-traditional families - What Makes a Baby

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Transcript

Katherine (00:04.825)
Hello everyone and welcome to the fifth episode of Planning for Inheritance, a podcast about all things inheritance with Sunnybranch Wealth. I am so excited to introduce our guest on today's podcast, Tabitha Koh, the managing partner at Benef Chally & Koh, a boutique law firm based in Portland. BCK provides legal care for families of all kinds and at all stages. 

Since 1976, they have been committed to serving diverse clients, including LGBTQ plus families and individuals. So Tabitha, welcome. I am so glad to have you join us for a discussion of estate planning for individuals with non-traditional family structures or family building experiences.

Tabitha L. Koh (00:57.834)
Hi, Katherine. Thanks so much for having me here today. Yeah, you did a great job summarizing what I do. My firm is one that works with families both in the family creation stage where they're working on creating legal bonds through adoption or assisted reproduction, a guardianship, and then family protection where we're doing estate planning with all types of families and really helping people navigate through those difficult choices. So...

I am fortunate enough to work in a field that I am really passionate about. The thing that drew me to this was the opportunity to be with families really during these difficult transitional moments. And I'm thrilled to have a chance to talk with you about it.

Katherine (01:45.849)
I am really looking forward to it. Sunnybranch and my work with clients tends to focus on the other side of the spectrum. So not so much the planning, but what happens after someone dies, when all of that planning gets put into practice or where the rubber meets the road. But I have a real personal interest in this. My two children were both created with the help of an egg donor.

And so I understand what it looks like when, you know, from one small piece of what the non-traditional family building experience looks like, I know what our experience was and some of the stressors and the questions that come along with that. So I'm really excited to have this conversation and share some information, maybe with people who meet it or maybe with some people who are just curious and want to look more. Maybe they have a friend or a family member who's going through this and want to be able to lend support.

Tabitha L. Koh (02:46.338)
Yeah, great.

Katherine (02:50.105)
My first broad question for you is for those of us who built our family in non-traditional ways, whether it was through IVF, surrogacy, adoption, what are the major legal issues that we need to be aware of?

Tabitha L. Koh (03:05.738)
So the overarching issue that everyone should be tracking is to have legal clarity in the relationships between the family members. So in an ordinary conception, a married straight couple has a baby in the traditional way, there's no need for them to look further to be sure that the legal parent-child relationship is established between both parents and the child, and that...

the legal relationship is established between the couple. That happens through marriage and through conception and birth. When you have used alternate means to create your family, it's worth taking the extra time to confirm that you have legal clarity as to the relationships among the family members.

Katherine (03:54.553)
I can think of and just from talking to you and knowing a little bit about your practice and looking at the website, a lot of different instances where this comes into play and I want to take some time to talk about the specifics of some of those situations. Can we start by talking about the need or when second parent adoption for LGBTQ plus families is necessary and what that process looks like?

Tabitha L. Koh (04:22.062)
Absolutely. So we use the term second parent adoption to mean the situation where you're using the legal adoption process, not to sort of create a brand new family where there's not already an emotional relationship, but rather to give the legal security of a parent-child relationship for both parents in a non-traditional or same-sex relationship. So the way that...

we usually approach that is the couple comes in as a, as a co-petitioners, they're both working together. Often I'm contacted by people early in their pregnancy once they are confident that the baby's gonna stick and they wanna really know that from as soon as possible after the moment of birth, both of those parents are legal parents. Most often this arises in the case of a lesbian couple or.

couple that identifies as female, both of them, and who likely have married or have a domestic partnership, which gives them some security under state law that the non-birthing parent will still be a legal parent of the child. But it is still strongly recommended by practitioners in this area of the law that a court judgment or order, depending on your state.

is obtained that makes a clear legal parent-child relationship between the non-birthing parent and the baby.

Katherine (05:58.509)
You mentioned state law. Is this something that people need to worry about if you establish it in Oregon, say, and then you move to Mississippi, not to stereotype against Mississippi, but a more conservative state? Is it something that you need to worry about it again if you cross state lines?

Tabitha L. Koh (06:20.142)
So portability is actually one of the main reasons to do an adoption. We are really confident that an adoption in one state that is properly obtained is going to be recognized in other states or even other countries, frankly. The concern is that the presumption of legal parenthood that you get in a pro-family state like Oregon would not necessarily be recognized or adequately protected in other states.

That's not the way it should be. I regret that that's the way it is. But when it comes to legal clarity and protection for children and parents and same-sex families, the adoption is really the way to confirm that you've done all you can to get that legal security.

Katherine (07:08.861)
And is that the presumption of parentage, talking about it in the case of adoption or second parent adoption, is that also something that people who created their families with donor eggs or donor embryos or donor sperm, is that something that they need to worry about as well? If they carry the child, one person carried the child.

Tabitha L. Koh (07:29.698)
So.

Tabitha L. Koh (07:33.054)
Right, yeah, like the situation that you described, right, for yourself. So no, that's not usually something that needs the security of a second parent adoption. And that's again because that birthing parent is presumed to be the mother of the child that she gives birth to. And so if you have created your child with donor embryos or donor eggs, technically speaking, you could seek a confirmatory adoption or a confirmatory judgment.

Katherine (07:35.629)
Yes.

Tabitha L. Koh (08:01.926)
but that's really not something that I see any need to do. You are the mother by virtue of having given birth. If you are married to the father, they are the father by presumption of being married to you, to the person who gave birth. The situation can get a little more complicated if a child is conceived in a non-married couple, whether straight or heterosexual.

I mean, sorry, whether straight or gay or same-sex couples. And that's because the presumption of paternity for a non-married father, paternity needs to be established using an acknowledgment of paternity form because you're not married. And technically speaking, if a child were conceived with a sperm donor, then that

unmarried father, co-parent, would need to take additional steps to have absolute security as to his parent-child relationship.

Katherine (09:08.013)
Does your, would your answer change in other states? Like is that answer that you gave about not really need to, not needing to worry about, you know, this, the adoption, establishing parentage if you use donor eggs and donor embryos, whatever. Does that change if you're in a different state with different state laws, or is that pretty much across the board in the US?

Tabitha L. Koh (09:33.998)
So broadly speaking, there will be a presumption that the person who gives birth is the parent. However, there are different states who are taking different approaches to donor conception. So I would absolutely encourage somebody in another state that I can't speak to, to consider just a brief conversation with an assisted reproduction lawyer to confirm that there's nothing more that they need to do.

Katherine (10:03.539)
Moving on, talking about surrogacy or families who adopt, does the legal adoption process look the same for both of those family building methods or is it different?

Tabitha L. Koh (10:21.162)
So it looks quite different when it comes to a surrogacy conception. So when I'm talking about surrogacy, generally I mean gestational surrogacy. That is the case where the woman who's giving birth, who is carrying the baby for the intended parent family is not genetically related to the baby. If it's a scenario of traditional surrogacy, that is a woman is carrying the baby for a family.

intending that they will be the parents, but her egg was used, so she conceived typically just through artificial insemination with the father's sperm. In that scenario, it's strongly recommended that you treat it as an adoption. So that woman would be relinquishing parental rights after the baby was born. And even though there was lots of understanding and confidence in the intended plan, the court is going to need to be involved in terminating her parental rights.

So that's the current law in the state of Oregon. And anybody who's contemplating a traditional surrogacy really needs good legal advice before they get too far into it to be sure that that's safe. For gestational surrogacy, where an egg and sperm from either outside donors or the intended parents are combined to create an embryo, and the embryo is transferred into the uterus of the...

gestational surrogate. In that scenario, we have a different process we're able to use in Oregon, a parentage judgment. It basically involves all of the involved adults, so the surrogate and her husband or partner, she has one, and both intended parents, or only one if it's a single parent, going to the court with their respective lawyers and asking for an order that declares that the intended parents are the exclusive legal parents.

and that the gestational surrogate is not a legal parent without parental rights or parental responsibilities. So in that type of family building structure, the court piece is essential because otherwise the birth certificate will list the surrogate as the mother and that will be the documents the family has.

Katherine (12:38.769)
Is there a time frame where you need to get that done? I imagine you don't want to leave it until the day before she's about to give birth.

Tabitha L. Koh (12:47.082)
You're right. Now, in the case of a surrogacy, a gestational surrogacy birth or expected birth, typically the legal documents are put into place between about 20 weeks and 30 weeks of gestation. So basically once you're confident in the pregnancy, but before you get to that third trimester and the possibility of early delivery. And the process is really well established here in Oregon.

And as long as you're working with an attorney that has experience in the area, I would expect it to go smoothly and without issues.

Katherine (13:22.889)
Continue walk through for families who are adopting a child, then you talked about it a little bit, but how does that process look different for them?

Tabitha L. Koh (13:34.238)
Yeah, so if we're talking about an adoption that is really creating a new family, so a child is coming into your home, not a child that one or the other of the parents has birthed or conceived with surrogacy. That type of adoption requires a straightforward adoption petition process working through the court in the county where you reside to present the court with the relinquishment of consent documents.

that have been signed by the birthing parents, who's the legal mother and the legal father, if there is one, and asking the court to approve the home study that you've had completed and create this new family unit. So that adoption process, really I think of it as the combining of elements from two families. So a child has been born to one family or will be born to one family.

Another family has been selected by the birthing parents for adoption. And the adoption process is sort of settling the legal matters with regard to who is the legal parent of the baby.

Katherine (14:47.757)
For anything we just covered, I imagine for a lot of it, the legal stuff, for lack of a better word, happens as a matter of course. But in instances where it doesn't, you might forget about it, like second parent adoption. Is there a hard timeline on that? If you haven't done this, by the time your child is a year old, it's too late or you've opened yourself up to some realm of legal uncertainty Or is it as long as you get it done before there's any legal challenge. You're okay

Tabitha L. Koh (15:29.654)
This is actually a great question, Katherine, because to a lot of families who are undergoing or going through a traditional adoption process, they can't imagine the legal part not happening right away, because they are looking for security that the birth parents won't be able to revoke their consents and that the child sort of is legally and firmly a part of their family.

Obviously the emotional relationships are complicated and ongoing. And that's actually something to note when we are completing an adoption between two families. The relationships, the emotional sense of family and the desire to be involved in the child's life does not necessarily end. And we have a long history in Oregon of open adoptions where a birth family continues to be able to communicate and have contact with the child in the adoptive family.

But legally, and this is part of my job, my mission as an attorney is to give legal clarity to the family and that is who are the parents and who are not the parents and who has that ultimate authority in the eyes of the law. Okay, so there are lots of adoptions that happen in a much more organic and less sort of, less,

emotionally fraught way. Those are inter-family adoptions. In some communities that we have here in Oregon, you might have a child that is being raised by an aunt and uncle and knows them as their parents. No consents have been signed, no paperwork has been filed. It's just been a matter of course that that's how the family has resolved raising of this child. We see the same thing as you suggested in second parent adoptions where...

People get home from the hospital, they're with a newborn, they just don't even think about these other pieces of the process. And there's not a time limit on when that can be completed. I see in some cases, the issue comes up when the child is 15 and a half and wants to get a driver's permit. And they realize that, oh, mom and dad aren't actually the people that are on the birth certificate and they come in to get that adoption completed.

Tabitha L. Koh (17:53.846)
That's a case where really my role is to give the legal structure on top of a family relationship that is already very well established and long term.

Tabitha L. Koh (18:11.166)
I actually, can I add a word about adult adoptions? Because it's not something most people think of, but it's also very close to my heart. Okay, so there's no rule in Oregon that you can't adopt somebody after they're an adult. And at the time that someone's 18, they can choose to be adopted as long as the petitioner, the adopting parent and the person being adopted both agree.

Katherine (18:19.118)
Breathe.

Tabitha L. Koh (18:36.93)
They don't need to even inform or involve their other legal parents. They're an adult and they're able to make that decision. So there are some situations where a young person has been effectively parented by somebody who has no legal relationship to them. And for complex reasons, often relating to birth family drama, they don't choose to do any legal process while the person is a minor.

but they can still have the satisfaction of having that legal kinship created with their parent after they're 18. In my own family, I was able to be adopted by my stepmom who had been in my life since I was nine years old, but my dad died when I was in my early twenties. And my stepmom continued as an important parental figure to me, along with my bio mom who is still very much a parent.

But my stepmom and I had no legal relationship with each other. And this actually becomes an issue when you think about the end of life concerns and the right to visit somebody in a hospital, the right to be involved in their medical decision making, where having that legal parent-child relationship makes a world of difference. So I was able to be adopted two summers ago along with my older sister.

by Linda, my stepmom. So now I have two living parents again.

Katherine (20:08.569)
It's such a special story. Thank you for sharing it and something that I hadn't even considered, but I think that could be really important for the people that I work with. So if you have a person in your life who you would consider to be a parent figure, if they don't have a legal relationship to you, even if they don't have a legal relationship to you,

Even if you're okay with that, you've resolved it in your own mind. It may be something that you want to consider from an end of life planning perspective.

Tabitha L. Koh (20:46.254)
That's right. And that's sort of from the perspective of as this elder person is aging, do they have those protections in place? Do they have a legal next of kin that's close to you? You don't want to be in a situation where hospital staff asks you to leave because you're not legal relation, legal kin, right?

Katherine (21:11.193)
Well, thank you for sharing that and congratulations on your second official mom.

Tabitha L. Koh (21:14.37)
Thank you, yeah. Exactly, it was lovely.

Katherine (21:20.677)
You mentioned open adoption and really wanting to be, have that information available to children who are adopted and taking us a little bit on a tangent, but because it's important to me, it's something that's really important. We have open communication with our egg donor and it's something that's really special to me and something that I hope as our kids get older.

I hope they're interested in meeting her. It's their choice. We've never met her. But I think it's a really special part of their story. But I know that it is, while it may have been discussed for a longer time and is more common in the adoption space, I think something that feels newer when you talk about the donor conception space. But for people who are maybe listening to this and struggling with the idea of

adopting a child in an open adoption or using donor egg and donor sperm and having communication with that person at some level, what resources or advice can you provide to help inform their decision?

Tabitha L. Koh (22:35.018)
Yeah, I mean, you're right that it can be emotionally taxing to sort of work through all of these dynamics in the relationships. I would encourage people, first of all, not to be afraid of the openness. This is not legal advice. This is advice from someone who's watched a lot of families navigate this process over the years.

you are the parents of your children, you raise them, you're there for the day to day, you provide the love and support and nurturing that they need. And the fact that other people have contributed to the being of this child that you love so much does not threaten that role of you as the legal parent. So I would first of all just encourage people to keep an open heart and an open mind there. In terms of adoption,

It's been clear for quite some time from the research that children do better when they have the opportunity to ask questions, to know the birth parents, to understand that they were loved and that this decision was made thoughtfully for them. And also just to have their curiosity about their biological origins answered, to have a path available. Not every open adoption continues to have lots of communication, right? People's

lives can go in different directions and sometimes birth parents who have committed to an openness agreement end up unable to actually stay with that for whatever is happening in their own life for those reasons. But having the opportunity to have your child get access to that information in an adoption is really a wonderful gift that you can give them.

And you're right, in adoptions, we typically would have an open adoption agreement that's actually incorporated into the judgment of adoption. And it is an enforceable contract. So it can't be used to challenge the underlying adoption. So the adoption is secure, but it is something it's an enforceable promise to continue to have communication. And that's something that we have in a number of states.

Tabitha L. Koh (24:57.182)
We don't have enforceable adoption agreements in every state, but lots of people will have informal arrangements, even if they don't have a formal adoption agreement.

when you are actually doing your estate planning and nominating a guardian for your children, that's a place where you can, where you want to be thoughtful because most adoption agreements will include a promise that if you were to die and a guardian took over the care of your children, that you would direct the guardian to abide by an existing adoption agreement. So that's something that's important to have in place there.

When it comes to donor conceived kids, and whether it's sperm donor, egg donor, or an embryo donor, where both sperm and egg were provided, you have, as you sort of described, a wonderful opportunity to have some communication, to get some information about the donor, to have a donor that's willing to be contacted when children grow up. There's a lot of energy around this right now in the US. And...

I would say over the last four or five years, nearly every professional conference I go to has some component that is about donor conceived people and the rights of those children to have access to more information about their biological antecedents, right? So I am wholly convinced that is the best practice to have. And it can feel difficult to parents, right? Especially a parent who's

been going through infertility, is still sort of coming to terms maybe with not being able to be genetically related to the child and navigating that sort of emotional territory. There are also wonderful resources. I'm a strong believer in therapy and counseling. Most reputable donor programs have counseling requirements or opportunities so that people can really work through some of these feelings.

Tabitha L. Koh (27:02.738)
and try to be sort of in a better space when they're making these decisions. I will say that one insight or perspective that has been really helpful to me in thinking about this is that for the parents undergoing IVF, they see often getting a donor as a medical issue. That's...

often how the doctors see it, the IVF doctors. There's a medical problem, infertility, we can fix it with a donor egg or donor sperm, great. We solved it, right? But from the child's perspective, this is their origin story. So this is not just a medical treatment that was obtained, this is their roots, and they want the opportunity to know all of that. So I would encourage people to read about it. There's wonderful resources out there.

to talk with their medical provider and also really to use the resources of experienced fertility counselors to sort through some of these feelings.

Katherine (28:11.529)
I appreciate that perspective. And I think that's a really second important way to think about it. And something that we tried to do is, at some point our story and our relationship to the fact that we use donor eggs ends, right? Like it actually pretty quickly stops being our story and it starts being their story. And so, just trying to approach it for us that way where really at the point they're born, it's theirs, right? And our...

our piece sort of ended and how do we want them to know their story.

Tabitha L. Koh (28:45.362)
Exactly.

Katherine (28:48.221)
Yeah, I'm gonna put a plot. I'm not gonna remember it right now. But there is the most fantastic kids book for anyone who was conceived in a non-traditional method.

and I'm not gonna remember what it is, but I'm gonna put it in the show notes because everyone should look at it. Yes, thank you. I was like, we read it so many times a week. Yeah, what, no, what makes a baby? Yes, it is, no matter what your family building journey was, you can fit it into that book. I just, I can't recommend it enough. I'm going to be giving it to anyone that we know who has a different type of conception journey.

Tabitha L. Koh (29:06.962)
It's not, is it the one called what makes a baby? Yes, or how to make a baby. It's one of those, yeah.

Katherine (29:34.277)
So, Tabitha, my last question, and we've talked about this a little bit when we talked about adult adoption, but for any listeners who themselves are a result of non-traditional family building, you know, who are in maybe their 20s, 30s, and 40s, obviously this is all what you're saying is very established now, but for some listeners, I imagine when their parents were...

were having them making their own families, it wasn't so exactly clear what you needed to do from a legal's perspective. And obviously, you know, for same sex couples, legally things looked very different. So if you yourself are the product of a non-traditional family building journey, what do you need to talk to your parents about as you are starting conversations with your family about their end of life and their estate planning?

What kind of questions do you need to be asking to make sure that nothing goes wrong? Like you said, is showing up at the hospital and being told that you have to leave because you're not a legal kin to your mom or your dad or whoever.

Tabitha L. Koh (30:45.63)
Yeah, so I'm going to tackle this question in sort of two parts. The first is for those adult children of non-traditional family building, but also children, perhaps of traditional families who are having children in a non-traditional manner. So there are a lot of assumptions built into our estate planning laws and inheritance laws. And one of those is that the child born to a marriage

is the child of both parents, that the people who are adopted, children who are adopted are under state law, legally, fully the children of both of those parents, right? And not of their birth parent.

Tabitha L. Koh (31:34.19)
But there is sometimes, as you say, some uncertainty around if those legal processes were completed properly. So if you have a situation where the dad that you always thought was your dad actually is not your biological dad, you would normally, and didn't adopt you, you would normally be able to discover that by looking at your birth certificate. So that's something that sometimes kids aren't aware of, but most adults

are aware of that because they're reading their birth certificate and they can see who's listed on there or not. And who's listed on the birth certificate is really good evidence of who is a legal parent. It's not conclusive. It doesn't establish legal parental rights, but it is what most of the world takes as sufficient evidence of who are your legal parents. So double checking that if you believe there was an adoption, that it actually did occur. If there is some family...

lore around who was your biological parent or not, that you actually get that information and confirm that the people you think are your parents are your legal parents. Once you've done that, you're going to have the advantage of the benefits of the assumptions that are in place for children, for legal kin. However, there are sometimes areas of the law where...

A descendant is defined in a specific way. So you might have parents that live in Florida, and I don't know Florida law, so it's a random example. And they have a trust that establishes that at their death, things are given to their grandchildren in equal shares. Their assets are distributed in equal shares to my grandchildren. And there could be a provision that defines grandchildren.

as children who are born to a descendant of the grandparents. So usually the language would say born to or adopted by, and that's pretty good. But that could leave out children who are established by other provisions of state law to be the legal child or the legal descendant of that grandparent. So if you have...

Tabitha L. Koh (33:50.614)
parent-child relationship that have been established through a parentage judgment in a surrogacy, through a presumption of parentage in a same-sex relationship where you don't do an adoption, then you should really confirm that your parents' estate planning documents aren't inadvertently leaving out your child because you didn't establish it in one of the narrowly described methods, right? So that's one.

The second part is that oftentimes people fall into an assumption that they have a parent-child relationship. This is something that I've seen happen in several cases with a stepparent who basically raised a child, identifies the child as theirs. The whole family has no sort of even really awareness of the fact that actually they don't have a legal relationship. And if I'm sitting down with an estate planning client and he says,

Well, I have three kids, I want it to go equally. And then you dig down a little, it turns out that well, actually one of those kids is a stepdaughter, but he thinks of her as his child. That's great, but that might not be enough to provide that inherited security when we're using a general term. So the best thing that grandparents or parents can do is to identify by name the people who they consider to be their children and grandchildren. And then there's no...

uncertainty as to whether a category that is narrowly described actually does include that emotional kinship.

Katherine (35:31.577)
but thank you so much for sharing and for giving me things that I didn't know to think about and to bring up with my clients and people that I know, as we all sort of navigate this having children and our parents getting older journey that we seem to find ourselves in. That is all the time that we have for today, but I wanna thank you so much again for joining me for a wide ranging conversation.

And I would love for you to share with our listeners where they can find you.

Tabitha L. Koh (36:04.15)
Yeah, you can find me at www.bckattorneys.com And we're also on Facebook. And I'll go ahead and provide the links so that you can add those to your show notes if you don't mind.

Katherine (36:18.913)
We will do that. Thank you so much. And thank you to everyone who tuned in for us. If you would like to connect with Sunny Branch Wealth, you can find me at sunn or on Instagram or TikTok at Sunny Branch Wealth to learn more and tune in next month to get the next episode of Planning for Inheritance. Have a good one.