Family structures in the UK continue to evolve, and surrogacy is an increasingly common route to parenthood. However, as with many modern family arrangements, the legal framework governing inheritance has not developed at the same pace.
This creates uncertainty and, in some cases, the potential for disputes under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”).
At its core, the issue is one of legal status versus lived reality. The Act allows certain categories of individuals to bring a claim where reasonable financial provision has not been made. In the context of surrogacy, determining who falls within those categories is not always straightforward.
Legal Parenthood and Timing Risk
Under UK law, the surrogate (and, if applicable, her spouse) is the child’s legal parent at birth. Intended parents only acquire legal parenthood once a parental order is granted.
This creates a critical window of risk. If one of the intended parents dies before a parental order is made, the child may not yet be recognised in law as their child for inheritance purposes.
This can be where uncertainty arises. While a parental order retrospectively confers legal parenthood, the position at the date of death can complicate both entitlement and the structure of any claim.
Even where formal legal parenthood is unclear, the Act provides alternative routes. A child born through surrogacy may still be able to bring a claim if: they are treated as a “child of the family” by the deceased; or they were being maintained, wholly or partly, by the deceased immediately before death.
These categories are deliberately broad, allowing the court to look beyond strict legal definitions and focus on the substance of the relationship.
In practice, this means the court will examine factors such as the role the deceased played in the child’s life, the extent of financial support, and the overall family dynamic.
Blended and Diverse Family Structures
Surrogacy arrangements often sit within wider, complex family structures. There may be multiple adults involved intended parents, a surrogate, and sometimes donors each with different roles and expectations.
Where relationships break down, or where estate planning has not kept pace with those arrangements, competing claims can arise. These disputes are often driven as much by differing perceptions of family and intention as by strict legal entitlement.
The Court’s Approach
The court’s task under the Act is to assess what constitutes “reasonable financial provision.” In doing so, it will consider a range of factors, including the applicant’s financial needs, the size and nature of the estate, and the obligations the deceased had towards them.
In surrogacy cases, particular weight is likely to be given to the reality of the relationship. Where the deceased acted as a parent emotionally and financially the court is generally willing to recognise that, even if the legal framework is imperfect.
However, outcomes are fact-specific and can be difficult to predict, particularly where legal parenthood had not been formalised before death.
The Surrogate’s Estate: An Overlooked Risk
One area that is often overlooked is the position of the surrogate herself. As the legal mother at birth, she carries a short-term but potentially significant inheritance risk.
If the surrogate were to die before a parental order is made, the child may, in strict legal terms, fall within her estate. This can create unintended consequences, particularly if:
* the surrogate has her own family or children
* her will does not reflect the surrogacy arrangement
* there is no clear documentation of intentions
In such circumstances, there is a real risk of conflict between the surrogate’s beneficiaries and the intended parents. Even if the practical intention is clear, the legal starting point may not line up with that reality.
There is also the potential for claims against the surrogate’s estate. A child could arguably fall within the scope of the Act as her legal child, or as someone for whom she bore legal responsibility, even if only temporarily. While such claims may be unusual, the risk is not purely theoretical.
This highlights the importance of careful, short-term planning for the surrogate as well as the intended parents. Wills, guardianship provisions, and clear documentation of the arrangement can all help reduce uncertainty during this transitional period.
Practical Implications
For those involved in surrogacy arrangements, the key risk is misalignment between intention and legal structure.
Without clear planning:
* a child may not be adequately provided for
* the wrong individuals may inherit by default
* disputes may arise between different parts of the family
* unintended exposure may arise in the surrogate’s own estate
Ensuring that parental orders are obtained promptly is essential. Just as important is keeping wills and wider estate planning under review so they reflect the intended family structure at every stage.
A Need for Joined up advice
Surrogacy highlights a broader theme seen across modern family arrangements: the law often lags behind lives lived in today’s world.
Addressing that gap requires a joined-up approach between family, private client, and disputes specialists. Early, coordinated advice can ensure that intentions are properly documented and legally effective reducing the risk of disputes later.
Where that has not happened, claims under the 1975 Act remain an important mechanism for achieving a fair outcome.
As family structures continue to evolve, surrogacy is a clear example of how those changes are beginning to test the boundaries of inheritance law and why careful, proactive planning is increasingly important for everyone involved.
Contact Alastair Goggins or our Dispute Resolution team to find out how our experts can assist you with your inheritance disputes.