Adopted children generally have the same right to inherit from their adoptive parents as the biological children of those parents. However, there are a few estate issues that are unique to families with adopted children.
Adoption & the Parent-Child Relationship
The adoption of a minor child creates a legal parent-child relationship between the child and the adoptive parent, while severing the legal relationship with the birth parents—with one exception, second and step-parent adoptions, see below.
Parent-Child Inheritance Rights
Because most adoptions sever the legal relationship with the birth parent while creating a legal relationship with the adoptive parent, adoptive children have inheritance rights connected with their adoptive parents, but not with their birth parents.
For an adopted child, these inheritance rights include:
- The right to receive property from their adoptive parents under intestacy laws. When a parent dies without a will or other estate plan, that parent’s children have a right to a portion of that parent’s estate. Adopted children have this right in connection to their adoptive parents, but not in connection with their birth parents.
- The right to receive a portion of an adoptive parent’s estate if they are accidentally left out of a will. All states have laws that protect children from being accidentally left out of an estate plan. Adopted children have this right in connection with their adoptive parents, but not their birth parents. For example, if a child is adopted in May, but the adoptive parent dies in July without updating his or her will to include the newly adopted child, that child will still receive a portion of the deceased parent’s estate. But if it was the birth parent that died, the child would be entitled to nothing.
- The right to be included in the adoptive parent’s reference to “all my children.” Estate planning documents sometimes treat a parent’s children as a group. For example, a parent may leave his or her estate to be shared equally by “all of my children.” As long as there is no explicit intent to the contrary, an adopted child will usually be included in that group.
As adopted children gain and lose inheritance rights through adoption, parents also gain and lose related rights. For example, when a child is adopted, the adoptive parent gains the right to receive a share of an estate of a child who dies intestate, and the birth parent loses this right. The same gain and loss of intestacy rights applies to siblings as well: for the purposes of intestacy, an adopted child is connected to the siblings in his adoptive family, but not his biological siblings.
Step-Parent and Second Parent Adoptions
Step-parent and second parent adoptions work differently. They allow a child to be adopted by a or step parent or another adult, without severing ties with any existing birth parent. This type of adoption is useful for blended or other nontraditional families that want to create new parental relationships, without destroying others.
- Example: Sherry is married to Juan and they are raising Jonas, Sherry’s son from a prior relationship. Juan has a good relationship with his birth father and sees him regularly. Juan adopts Jonas through a step-parent adoption so that they can have a legal parent-child relationship that allows Juan to make parental decisions about Jonas’s health care, education, religion and other important family issues. Jonas retains his parent-child relationship with his birth father, so he can still inherit from his birth father if his birth father does not leave a will.
This type of adoption requires the consent of the birth parents, and all parents have to work together on behalf of the child. If the consent of a birth parent cannot be acquired because the parent is dead, it is possible for the child to retain his legal connection to the deceased birth parent’s family.
Inheritance Without a Legal Parent-Child Relationship
Although usually severs legal ties with the birth family, it is still possible for the adoptee to remain socially connected to the birth family. This happens regularly in “open adoptions” where the birth family and adoptive family may establish a relationship during the pregnancy and continue with the relationship well after the birth and adoption of the child. In this situation, although the child no longer has inheritance rights in connection with the birth family, either family can choose to provide for the other through estate planning. So although the law doesn’t provide an inheritance, the parties leave gifts to each other though wills, trusts, deeds, beneficiary designations, or other estate planning tools.
An Attorney Can Help
Adoption can be complicated and raise important issues, including issues about inheritance. See a good family law or estate planning attorney for help.
Questions for Your Attorney
- How can I ensure that my biological child will receive part of my estate even though we don’t have a legal parent-child in the eyes of the law?
- My spouse's ex won't let me adopt my step-child. What can I do to make sure that my step child will inherit from me?
- I want my current husband to adopt my child from a prior relationship. That parent is now deceased, do we need permission from his family to go ahead with the adoption?