A great many wills leave an estate “to my children in equal shares”. It is standard, sensible drafting for most families. In a surrogacy family it can be a document that fails completely, at the one moment its maker cannot correct it.
Why the Phrase Fails
Because who falls within the word “children” is a legal question, answered by reference to legal parentage — not by reference to who was raised in the house, who did the school run, or what everybody plainly intended. Where one parent in a surrogacy family is not, in law, the parent of the child, a gift to “my children” in that parent’s will may simply not reach them. The same problem arises with a class gift to grandchildren in a grandparent’s will, which is a trap families almost never think about: a grandparent’s carefully drafted will leaving a share to “my grandchildren” may exclude a child whose legal relationship to their own child is incomplete. And it is worse without a will at all: the intestacy rules distribute by reference to legal relationships, so a child who is not the deceased’s child in law does not take as a child — and an estate can pass instead to relatives who had no involvement in that child’s life. Nobody has to behave badly for any of this. It is simply rules written for other families being applied to yours.
What the Will Should Say Instead
Name the child expressly. Not “my children” — the child’s full name, date of birth, and an unambiguous gift. Define any class carefully where a class gift is used, so that it plainly includes children of the testator’s family however formed, and consider whether it should include children born in the future by the same route. Address the position openly in the document, so that nobody administering the estate is left to interpret. Appoint testamentary guardians — a critical step in a family where, if the legally recognised parent died, the surviving parent might hold guardianship at best and no status at worst. Deal with the same points in both wills, and mention the issue to grandparents, whose wills carry the same class-gift risk. And take tax advice: capital acquisitions tax operates by reference to the relationship between giver and receiver, with different thresholds for different relationships, and where a child is not a child in law of the person leaving them an asset the treatment may not be what the family assumed. That advice goes to your accountant and Revenue — this practice does not advise on tax — and it should come before the will is finalised.
This is the only item on this website that cannot be repaired after the event. A guardianship application delayed is a guardianship application made later. A will not made before a death is a distribution that has already happened. If commencement arrives and a parental order is granted, revisit the will then — but do not wait for that to make one.
If your wills predate your family, or use the word “children” without defining it: 01 5827148.
Richard O’Shea — Solicitor & TEP
Solicitor at Mary Molloy Solicitors (established 1981) and a TEP of the Society of Trust and Estate Practitioners. The firm advises on the legal position of families formed through surrogacy and assisted reproduction — parentage, guardianship, birth registration, travel documentation, and the succession and estate planning consequences that the current gap in the law creates. This is a legal practice: it is not an agency, does not match or introduce surrogates, and takes no part in any commercial arrangement. Consultations by telephone, video or in person. 01 5827148 · richardoshea@marymolloysolicitors.com · LinkedIn
General information, not legal advice. This website contains general information about Irish law relating to surrogacy and assisted human reproduction. It is not legal advice and does not create a solicitor—client relationship. Every family’s position turns on its own facts, and advice on yours requires a consultation.
The law is changing and this page has a date. The position described across this site is stated as at 31 July 2026. The principal surrogacy provisions of the Health (Assisted Human Reproduction) Act 2024 were not commenced at that date. Commencement orders can be made at short notice and will alter this position materially. Confirm the current position before acting.
This is a legal practice, not an agency. Mary Molloy Solicitors provides legal advice and representation. It does not operate as a surrogacy agency, does not match, introduce or recruit surrogates or intending parents, does not advertise for or on behalf of any surrogate, does not recommend or receive any payment from any clinic, agency or intermediary, and takes no part in arranging or facilitating any payment beyond the provision of legal services. Nothing on this site is an offer or invitation to enter any commercial surrogacy arrangement.
Foreign law and medical matters. Where an arrangement involves another jurisdiction, the law of that jurisdiction applies to what happens there and independent legal advice must be taken locally — nothing here states or implies that any arrangement is lawful or unlawful in any other country. Nothing on this site is medical advice, and questions about treatment, suitability or risk are for your treating clinicians.
Fees. Fees are agreed in writing with the client at the outset. In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
Tax. Nothing on this website is tax advice. Where parentage affects succession, gift or inheritance treatment, those questions belong with your accountant or tax adviser and with Revenue’s own guidance, and should be addressed before any step is taken.