Becoming a parent is exciting and scary all at the same time. For those who choose surrogacy as a means of becoming a parent there are a whole extra set of worries and concerns that can arise during pregnancy. It is however really important that you understand the position with surrogacy in relation to will planning during pregnancy and shortly thereafter.
Where parents naturally conceive the baby is a blood line descendant of their mother and father and will therefore fall within the intestacy rules for inheritance in the event that either parent dies before the baby is born or shortly thereafter.
If a step child is part of a family they will need to be specifically named in a will to inherit from an estate. The intestacy rules do not specifically provide for step children.
An adopted child is equal to a blood line descendant once adoption paperwork has been completed and sealed by the court. The adopted child is not considered a blood line descendent before this takes place and would need to be named in a will to inherit.
But what about surrogacy? In a surrogacy arrangement the intestacy rules state that until the parental or adoption order is in place the surrogate mother will be treated as the legal parent of the baby. If the surrogate mother is married, her spouse will be given the automatic status of the legal father. This can give rise to two problems. Firstly the surrogate baby would inherit under the intestacy rules from the surrogate family and secondly the baby would not inherit under the intestacy rules from the parents "to be".
To remove the surrogate parent status the parents "to be" need to apply for a parental order or an adoption order. This can only be done after birth. So where does this leave things in the meantime?
Parents "to be" need to make a will when they embark upon the surrogacy arrangement to ensure that the surrogate baby is included as a beneficiary of their estate should the worse happen. They can include the new baby in their will be reference to "surrogate children" which will include unborn children who have not yet been named. Whilst surrogacy agreements are not legally binding in the UK, a will made by the parents "to be" can also make provision for the expenses that have been agreed with the surrogate mother by way of a pecuniary legacy. This way any agreed expenses can still be paid in the event of the death of the parents "to be".
It is also important for the surrogate parents to make a will excluding the surrogate baby from their estate and providing for the parents "to be" to take on the role of guardian in the event that something happens to the surrogate mother.
It is important to remember the boring things in the midst of the excitement of a new child, particularly if it is something you have been hoping and wishing for. Whilst everyone hopes that things do not go wrong, they can, so why not be prepared.
Argo have a great team of advisers who will happily help to draft wills if needed. Give us a call if you need any help.
