Q: As family and relationship structures continue to become more complex, increasing numbers of people are opting to use a surrogate to enable them to have a child. What bearing can this have on estate planning?
A: In the UK, the legal parenthood of a child sits with the mother (and if she is married or in a civil partnership, her consenting spouse/civil partner) if neither of the intended parents are genetically related to the child, until such time as a parental order or adoption order is made after the birth.
More often than not, the parties involved will create a surrogacy agreement that sets out many of the arrangements that have been agreed.
However, in news that can occasionally come as a surprise to one or both of the parties involved, these agreements are not binding in the UK, so additional protection is required.
Even if the surrogacy is taking place overseas, if the intended parents live in the UK, the same rules will apply, and a parental/adoption order will be required before legal parenthood is transferred.
As such, there are some important complexities to consider for the surrogate herself as well as for the parents to be, both in terms of their estate planning during the pregnancy and shortly after the birth before the legal parenthood passes over.
It is vital that the necessary arrangements are in place for peace of mind all round.
As their biological child, until such time as the parental/adoption order is made, under the intestacy rules the child would be entitled to a share of the surrogate’s estate if anything were to happen to them without a valid will in place.
The surrogate would be well advised to consider making a will specifically excluding the child, if that is what they would want to do.
When making her will, the surrogate should consider making the intended parents the guardians of the child, in case anything should happen to her, and she could also name the intended parents’ choice of reserve guardians as well, for further protection.
Considerations for the intended parents
When making wills intended to include the child, the intended parents should first and foremost ensure that the child is explicitly included from the moment of conception by ensuring that the definition of ‘children’ within the will specifically includes any children born by surrogacy.
Generally, ‘children’ will include biological and adopted children, but not step-children. However, the exact definition can vary, and this could lead to arguments, so being absolutely clear in the definition is the best starting point.
Another option would be for the intended parents to include a discretionary trust in their will, with a letter of wishes explaining to the trustees that they should hold the estate for the benefit of the child in question as soon as it is born.
Another practical consideration relevant for both sides is one of any expenses due to the surrogate.