08 June 2021

Making the decision to start a family is an important and exciting life event. For some people, fertility treatment will become a necessary part of the process, and if that is the case for you it may be even more important to consider the terms of your Will.

When you embark on the fertility treatment process, it is important that you ensure your personal affairs are reviewed and up to date – and this includes putting a Will in place. This means that you can have peace of mind that your wishes will be respected after your death, should the worst happen.

The laws of succession have not been kept entirely up to date with societal changes and the advancement in the science surrounding fertility treatment, and this means that sometimes an unexpected and unwanted result might occur should an unexpected death happen during the fertility treatment journey. This can be addressed by making sure that you get the right advice for your family at an early stage.

How does the law regulate succession?

In the absence of a Will (often referred to as ‘intestacy’), the default position is that there is a fixed order of individuals who may inherit the estate.

The estate is divided into 3 parts:

1.  The Prior Rights of the Surviving Spouse or Civil Partner
2.  Legal Rights of Surviving Spouse or Civil Partner and Children
3.  The Residue which passes to the children in preference to a Surviving Spouse or Civil Partner.

For a more in depth analysis of the laws of intestacy and how they operate in practice, please see our recent blog which considers what happens if you die without a Will (available here)

Crucially, ‘children’ includes children born within the family and also adopted children. Children also includes those who are not yet born (“in utero”), but will not include children who have not yet been conceived as at the date of death.

Where a child’s parents both die, without appointing a guardian within their Will, the Local Authority become responsible for the child’s care, in the first instance. A friend or family member wishing to become responsible for the child would require to apply to the court for this purpose. Please see our recent blog on this topic for more information (available here).

What do I need to do differently if using fertility treatment?

Surrogacy

If there is an unexpected death during the course of a surrogacy arrangement, the following consequences are likely:

• When a surrogate child is born, the law treats the surrogate mother as the legal mother. Therefore, if the surrogate mother dies after childbirth, but before a Parental Order has been granted, the child will have automatic rights of succession in relation to the surrogate mother’s estate. A Parental Order from the court is required before legal parenthood can transfer, and the child must be at least 6 weeks old before such an order can be applied for. The consent of the surrogate would usually be required after that 6-week period has passed, but application can be made to the court to dispense with that consent if the appropriate consents have been signed in advance with the Clinic.
• If one of the intended parents dies before a Parental Order is granted, the child will have no automatic right to inherit from the intended parent’s estate.
• If the surrogate mother dies before a Parental Order is granted, this could mean that guardianship of the child could lie with the Local Authority instead of the intended parents.

Assisted & Donor Conception

It is important to remember that only children conceived as at the date of death have rights to succeed to the deceased parent’s estate. If a child is conceived in a fertility clinic after the date of death of their parent, then the child will not have any rights in relation to the estate.

Key points to bear in mind for your Will

Surrogacy
• The surrogate mother should expressly exclude the child from inheriting their estate under their Will if they would not intend for this to happen
• The intended parents must provide for the child expressly within their Will if they would wish for the child to inherit, should either intended parent die before a Parental Order is granted.
• The surrogate mother should name the intended parents as the child’s guardian in the event of her dying before a Parental Order is granted

Assisted & Donor Conception
• It is important to ensure that any biological children are expressly included within the Will, including those not yet conceived, if this is what is intended
• If you wish for your partner to be able to use your embryos, sperm or eggs after your death, you must ensure that provision for this is included within your Will and that it is not inconsistent with any consent forms provided to you by clinics and signed by you.

Getting things right for you and your family

It would be a mistake to assume that making a Will is a ‘once in a lifetime’ task. A Will should be a living instrument, which should be updated regularly as and when your life changes. Therefore, you should consider updating your Will after any fertility journey has finished to ensure that it still correctly reflects your current situation.

If nothing else, having a Will in place before you embark upon your fertility journey would be an excellent way to preserve your peace of mind knowing that your intentions will be respected on your death and that your family will be cared for.

If you would like further advice or assistance in relation to the matters discussed in this article, please do not hesitate to contact our experienced Private Client and Family Law Teams at BTO, who would be delighted to assist you and to put the legal documentation in place to ensure that your wishes are complied with upon your death.

Do you have a specific question that we can help you with? We offer a free Fertility Law Advice Service for prospective clients. Just send us an email at fertilitylaw@bto.co.uk and one of our specialist fertility solicitors will respond to your query within 7 days.

Charlotte Fleming, Solicitor: cfl@bto.co.uk / 0141 221 8012
Beverley Addison, Senior Solicitor: bea@bto.co.uk / 0141 221 8012