How Does Adoption Affect Inheritance?

Adoption

 It is not flesh and blood but the heart which makes us fathers and sons. - Schiller

When a person dies without a will, also know as intestate; the law determines who are the heirs of the estate. The general rule for an adopted child is that the adoption severs the parent-child relationship between the adopted child and his or her natural parents including severance of all inheritance rights.  The adopted child inherits by and through their new adoptive parents.

For example, under Pennsylvania law, for purposes of inheritance by, from and through an adopted person, the adopted person is considered as a natural child of his or her adopting parents; and an adopted child is not considered to be a child of his or her natural parents.  Pennsylvania provides a limited exception to this rule.  A child who has been adopted may inherit from his or her natural kin (but not natural parents) when the natural kin has maintained a family relationship with the adopted person.  The comment to the statute when it was enacted says that “[t]he exception recognizes that family relationships frequently continue for grandparents and others where an adoption may have occurred after the death or divorce of a parent.”

Here is an example: John and Katie are married and have a son, Buddy. John dies. Katie remarries. Her new husband, George, adopts Buddy. John’s parents, Buddy’s natural grandparents, are very much involved in his life, are frequent visitors and maintain a family relationship with Buddy.

Under the Pennsylvania Statute, if John’s parents die intestate, Buddy, even though adopted, would inherit from them.  They would be grandparents who had a relationship with the child who was adopted.

If a child is given up for adoption by termination of parental rights, the child does not inherit from either natural parent, although it is possible for the rule described above to apply to provide for inheritance from grandparents.

What about stepchildren?  If they are not adopted, they do not inherit from their parent’s spouse. This can create some unfortunate results. Let’s say Amy has a child, Josh. Amy marries David who is not Josh’s natural father. They live together as a family for years, but David never adopts Josh. That means that Josh is not Dave’s heir. If David dies without a will, Josh has no rights to Dave’s estate as an heir. Many folks are surprised when this happens. It is a good example of why it is very important to have an estate plan.

In these days of blended families, where the children can be yours, mine, and ours, it is extremely important that parents make wills that spell out the rights of their children.  It can completely destroy a family if only some of the children in a household inherit and others are cut out because of these inheritance rules.

What if a will or trust directs distribution to a person’s children, does that include adopted children? In construing a will making a devise or bequest to a person described by relationship and not by name (e.g. “my children” or “John’s issue”), any adopted person shall be considered the child of his/her adopting parent(s). In construing the will of a testator who is not the adopting parent, an adopted person shall be considered the child of his adopting parent or parents, only if the adoption occurred during the adopted person's minority or if an earlier parent-child relationship existed during the child's minority.

Why the age limit? The law varies from state to state, but in general, you can adopt and be adopted at any age. Here's an example why there is an age limit, Mrs. Dowager left a will providing for distribution to her children and grandchildren. Mrs. Dowager’s 65 year old son, Libertine, is unmarried and has no children. However, he has a close lady-friend, Floozy, who is 45 years old. Libertine adopts Floozy. If Libertine dies, Floozy is Mrs. Dowager’s grandchild by adoption. However, since the statutory rule of interpretation provides that in interpreting Mrs. Dowager’s will, an adoption has to occur during a person’s minority (under age 18) to be given effect, Floozy would not inherit any part of Mrs. Dowagers’ estate. (And that’s probably the way Mrs. Dowager would have wanted it.)

To insure that your adopted children or step-children are cared for after your death, scheduled an appointment with a trusted estate attorney to make a comprehensive will that ensures that the law does not overrule your wishes.