Establishing who is legally your child can be complex, but once a person in a parent-type role dies, it can be even more complex. When dispersing one’s estate, defining what counts as a child or parent may not be straightforward. You may need to put in a family provision claim, and for that, you will need a lawyer. If you do not already have one, contact Vanessa Ash.
Sometimes people say things in their wills that are not clear, for example they might leave their estate to their ‘children’. This is thought to mean any biological children, any children conceived prior to the deceased’s death, an adopted child, a child conceived using IVF (which may not genetically be the deceased’s, but is legally considered so), or the result of a surrogacy. Step-children are not automatically in this category.
Step-children
Step-children are not legally the child of a parent – they have two parents already, and these roles are – legally – filled. This means a step-child has to apply to the courts to seek part of the estate of a step-parent. They will need a lawyer to help contest the will in a family provision claim.
Adopted children
Adopted children cannot claim on their biological parents’ or relatives’ estates, as they are no longer considered to legally be their child. If a child reconnected with their biological parents prior to death, and had become dependent on the biological parent, a claim may be possible under another category. A biological parent who surrendered their parental rights cannot claim on a child’s estate.
IVF children
If a woman was married or under a civil partnership at the time of the assisted reproduction techniques, that partner is treated as the father or second parent to the child, unless a lack of consent can be proved. The man who donated sperm is not legally the father.
Children from surrogacy
Surrogacy law varies in Australia, however the woman who gave birth to the child is treated – by law – as the child’s mother. Parental orders are then sought from the courts so that the child can be then treated as the ‘new’ parent’s legal child. This is similar to adoption, whereby the child cannot claim on the biological mother’s estate, and vice versa.
Children born after the parent’s death
Typically any child born after the death of the parent in question does not fall into the category of ‘my children’ unless the child was conceived prior to the parent’s death. This may apply for assisted reproduction occurring after death.
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