Wills & surrogacy – how do they fit together?
It is widely acknowledged that Wills are one of the most important documents to arrange during your lifetime. They formally record your post-death wishes, allowing for the distribution of your assets, the creation of trusts and the appointment of guardians.
Often a big life event such as purchasing a property or starting a family spurs people on to put a Will in place so that they can ensure their affairs are tied up.
However, for some families, Wills are also the key to bridging the gaps left by the law.
Right of inheritance
If you are pursuing a surrogacy arrangement, you may know that the law does not treat the right people as the parents initially. This means that the child will not have an automatic right of inheritance from at least one of his or her parents.
For intended parents, having a Will in which they name their child specifically (or add appropriate provision for surrogate children) will resolve this hole in the law.
In the same vein, because the surrogate mother will initially be treated as the child’s legal parent (as will her spouse, if she is married), it is equally important for her to have a Will which explicitly excludes the surrogate child from inheriting a portion of her Estate.
Wills are also an excellent platform for intended parents to express their wishes as to who should act as the child’s guardians. Naming each other as well as chosen independent guardians is very important.
Likewise, it is essential for the surrogate to appoint the intended parents as the appropriate guardians for their own child so that this intention is clear in the event of the surrogate’s death.
In addition, Wills are an appropriate place to make provision for a surrogate’s expenses, in the event that one or both of the intended parents dies before birth, to ensure that she is not out of pocket as a result of the arrangement.
This is important because surrogacy agreements are not legally binding in the UK, meaning that a surrogate would have no way to secure and recover her agreed expenses in the event of the death (and therefore the goodwill) of the parents.
Ultimately, the parental order will resolve the legal position entirely, but this can take several months to be granted following the birth of a surrogate child.
Putting appropriately-drafted Wills in place will protect the child, the intended parents and the surrogate and her family until this point, and will then continue to fulfil all the regular functions of a Will going forwards.
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