"Will my children still inherit my money?" - Adoption & Surrogacy
"My children are adopted - will they still inherit my money?"
Many people adopt for many reasons, including infertility, same sex couples and the desire to provide a safe and loving family to a child in need. But does adoption affect their rights to inheritance?
Adoption is ‘the legal process by which a child or a group of siblings who cannot be brought up within their birth family become full, permanent and legal members of their new family’ (Adoption UK). This means that following an Adoption Order, that child is the legal member of the adoptive family and is no longer a legal member of the birth family.
Adoption and your Will
When writing a Will, you may leave your wealth to whomever you wish and you may choose to leave funds to groups of people such as ‘my children’ or ‘my grandchildren’, rather than naming them individually. Further, for those who do not have a Will, the intestacy provisions provide that wealth will fall down to children of the deceased in some circumstances. It is therefore important to be sure whether the adopted child forms part of this group or not.
If you are the adoptive family looking to include your adopted child, you do not need to worry. Your child is your legal child, and therefore reference to your children will include any adopted children. If you do not wish to include them for any reason, you must specifically exclude them.
If you are the birth family looking to include your child who has been adopted, you will need to make specific reference to that child, as otherwise they will no longer be included in the class of beneficiaries identified as ‘my children’. If you wish for a child who has been adopted to not be included in your Will, you do not need to make any specific reference to them, as they are no longer a legal member of your family.
One special consideration to make is that adoption is only legal when an Adoption Order is granted by a judge. Any child who may be situate with their adoptive parent/s, but not yet in receipt of an adoption order, will not be treated as a child of the parent/s (this would include children who are being fostered, on the concurrent planning pathway or subject to other arrangements) for legal purposes.
This is particularly important where a person has not been formally adopted, or where a person has raised a child as their own, despite alternative parentage.
"My children were born through surrogacy - will they still inherit my money?"
People use surrogacy for many reasons including being in a same sex couple – according to Surrogacy UK, 47.7% of their parents are in same sex couples.
There are different forms of surrogacy, and they are dependent on how the foetus arrived in the womb, however the premise of surrogacy is the same: the foetus being held in the surrogate’s womb is intended to be born to be raised by someone other than the surrogate mother.
Unfortunately, surrogacy has not kept up to date with the modern age. Importantly, “in the UK, the surrogate is the legal mother of the child unless you get a parental order from the court; even if the eggs and sperm used are yours or donated (ie, she’s not genetically related to the child).” (HFEA.gov)
This means that a parental order is needed before that child is a legal member of the intended family and is no longer a legal member of the surrogate’s family.
Surrogacy and your Will
When writing a Will, you may leave your wealth to whomever you wish and you may choose to leave funds to groups of people such as ‘my children’ or ‘my grandchildren’, rather than naming them individually. Further, for those who do not have a Will, the intestacy provisions provide that wealth will fall down to children of the deceased in some circumstances. It is therefore important to be sure whether the surrogate child forms part of this group or not.
If you are the intended family looking to include your child born through surrogacy, you do not need to worry. Your child is your legal child following the granting of a parental order, and therefore reference to your children will include any children born through surrogacy. If you do not wish to include them for any reason, you must specifically exclude them.
If you are the host family looking to include a child who was carried by you as a surrogate, you will need to make specific reference to that child, as otherwise they will no longer be included in the class of beneficiaries identified as ‘my children’.
If you would like to speak to an expert solicitor,
please contact us on: 0116 212 1000
Phoebe Skarlatos
Head of Probate, Wills & Trusts
