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How does surrogacy affect legal rights?

andrewAccording to recent figures from the Ministry of Justice Family Court, the number of parental orders in the UK – the transferring of legal rights from the surrogate mother to the intended parents – has almost trebled. The statistics highlight an increasing number of children being born through surrogacy, with 331 parental orders being granted last year compared with only 117 in 2011.

Children who are born from a surrogate mother would expect to be able to inherit from the estates of the parents that raised them, and that is normally what will happen under the law. However, what is less clear is the position in relation to their surrogate mother prior to legal parental responsibility being transferred through a parental order. When can a child claim legal rights against the estate of a surrogate? This post looks at legal rights in Scotland and how these are affected by surrogacy.

What are legal rights?

Under the law in Scotland, surviving spouses, civil partners, and children of the deceased are entitled to claim against their estate asserting what is known as their ‘legal rights’. Legal rights apply regardless of whether or not the deceased left a Will and irrespective of the terms of the Will. This is based on the principle that provision should be made for those closest to you from your estate and that a person should not be able to disinherit certain family members.

What can be claimed?

Legal Rights are calculated as a share of the net moveable estate. Moveable estate includes things such as; money, cars, furniture, shares and jewellery. What is known as heritable property (land and buildings) is excluded from legal rights claims although the Scottish Government have suggested they may change that rule in the future.

The extent of the share which can be claimed depends on who has survived the deceased:-

Survivors

Spouse/Civil Partner’s share of the Legal Rights Fund

Children’s share of the Legal Rights Fund

Spouse/Civil Partner and Children

1/3rd

1/3rd

Spouse/Civil Partner but no Children

½

n/a

Children but no Spouse/Civil Partner

n/a

½

The children’s share of the Legal Right’s Fund is divided equally among the number of children who survive the deceased (irrespective of how many of those children actually pursue a claim) with the children of a predeceasing child representing their parent. 

What is the effect of claiming your legal rights?

Claiming legal rights means that the beneficiary may not then also benefit from any provision made for them in the deceased’s Will.

How does surrogacy affect legal rights?

When a child carried by a surrogate is born, the parents who are to raise the child can apply for a parental order making them the legal parents of the child. Children born of a surrogate lose their right to claim legal rights against their surrogate mother’s estate once a parental order has been granted. This means that children born of a surrogate cannot make a claim against their surrogate mother’s estate. However, after the child is born, up to the time when a parental order is granted, the child will be in ‘legal rights limbo’. In this brief time the child would be entitled to inherit from their surrogate mother’s estate. There is anecdotal evidence that the number of surrogacies exceeds the number of parental orders which would imply that this may be a surprisingly common issue.

Contact Murray Beith Murray

If you need specialist advice or assistance with legal rights, contact our expert team today. We have experience in handling even the most novel and challenging cases. To discuss your specific circumstances with someone who can help, call us now on 0131 225 1200 or complete our online enquiry form.

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