The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
Kadie Bennett, Solicitor, explores the potential pitfalls of inheritance upon the death of a parent where a parental order is not obtained following the birth of a child via a surrogacy arrangement, in this fictional case study.
Jennifer and Jillian (the intended parents) entered into a civil partnership some years ago and have now decided to have a child via a surrogacy arrangement with Katherine (the gestational mother). Jennifer and Jillian decide that it would be fairer for neither of them to be the child’s biological mother, so Katherine is inseminated using both a donor egg and donor sperm. Upon the child’s birth, Jennifer and Jillian are shocked to realise that they cannot obtain a parental order as neither of them are biologically related to the child.
Jennifer’s estate is worth approximately £300,000. Katherine is not married and has no other children; her family members are her mother and brother.
Jennifer and Jillian chose not to pursue any legal remedies. The child is in their care, and they live as a family unit.
Legally, Katherine would remain the mother of the child, and Jennifer and Jillian have no legal rights or responsibilities in relation to the child. If Katherine were to die intestate, the child’s inheritance entitlement would be considered under the intestacy provisions. On the other hand, if Jennifer or Jillian were to die intestate, the child would not be considered under the intestacy provisions.
Under the intestacy rules, as Katherine’s only child, her estate would pass to the child absolutely. This would mean that Katherine’s own mother would not receive anything and could lead to her bringing a claim against Katherine’s estate.
If Jennifer died (and she had no other children), her estate would pass to Jillian absolutely. If Jennifer had other children, Jillian would receive all of Jennifer’s personal chattels, a statutory legacy of £250,000 and half of the remaining estate. The children (but not the child born of the surrogacy arrangement) would receive the remaining half of the estate absolutely.
Jennifer and Jillian chose to adopt the child.
An adoption order, like a parental order, is transformative in nature. Jennifer and Jillian would, for all legal purposes, become the child’s parents and if either or both die intestate, the child would be considered under the intestacy rules. Upon the making of the adoption order, Katherine’s parental rights would end. If Katherine were to die intestate, the child would not be considered under the intestacy rules.
Under the intestacy rules, Katherine’s estate would pass to her mother absolutely. From Jennifer’s estate, Jillian would receive all of Jennifer’s personal chattels, a statutory legacy of £250,000 and half of the remaining estate. The child would receive the remaining half of the estate absolutely.
Whilst pregnant, Katherine has grown attached to the child. Following the birth, the child lives with Jennifer and Jillian and is allowed to spend time with Katherine on an informal, but regular, basis. However, upon applying to adopt the child, Katherine refuses to consent to the adoption and applies for a child arrangements order to formalise the contact arrangements. The court grants a child arrangements order for the child to remain living with Jennifer and Jillian and for the child to continue to spend time with Katherine.
In this scenario, Katherine would remain the legal mother of the child. Jennifer and Jillian, by virtue of the child arrangement order, would obtain parental responsibility. However, unlike a parental order or adoption order, a child arrangements order is not transformative in nature, and neither Jennifer nor Jillian would be legally recognised as the child’s parent.
As in scenario 1, if Katherine were to die intestate, the child would be considered under the intestacy provisions. Conversely, if Jennifer or Jillian were to die intestate, the child would not be considered under the intestacy provisions.
Whilst Jennifer and Jillian are prevented from applying for a parental order in the above case study (due to neither of them being biologically related to the child), even where there is a biological link between the intended parents and a child, problems can arise when trying to obtain parental orders. It is important that intended parents are not only aware of these problems, but also the effect and implications these situations have on a family unit when a parent dies intestate.
Without a formal order of the court, there may be unforeseen practical issues where a child may inherit under the intestacy rules when it wasn’t intended. Conversely, a child could find themselves disinherited from a parent’s estate under the intestacy rules because the legal relationships have not been properly considered.
Changing charitable purposes and amending governing documents.
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