Given the reality that wills are generally written years before a person's death, children that didn't exist at that time may not be specifically mentioned in the will. The rules of intestate succession apply to allow courts to distribute estate property when there is no will available.

Adopted children have two sets of parents: their biological (birth) parents and the parents who adopt them - adoptive parents. As a result, there's a legal connection between the child and both sets of parent. Does the child have a natural right to inherit from the adoptive parents, legal parents or both? What if there is a "natural" (i.e. biological) child and an adoptive child? What are their rights?

Adoption Creates New Lineage

An adoption creates new lineage, and this is important for applying the rules of intestate (without a will) succession and will interpretation. Intestate succession generally says that adoptive children do not automatically receive property from their birth parent when there isn't a will.

Inheriting Intestate From Biological Parents

Generally, under intestate succession, adoptive children do not automatically receive property from their birth parent(s) when there is not a will. Normally, a parent and child relationship with the birth parents must be shown in order for an adoptive child to inherit from the birth parent.

Examples of Situations Involving Adoption:

Adopting a Step-child

When a step-child is adopted by a non-biological parent, they become, for all legal purposes, that person's child. Usually the child becomes part of the adopting family (one biological and one non-biological parent) and legal relationships with the previous family are ended. Thus, the adoptive child can inherit from the adopting family, but not the previous family.

However, if the reason for the adoption is the death of the child's biological parent, the birth relationship to the deceased parent may continue so the child can inherit intestate.

Adopting a Family Member

Sometimes, one family member will adopt another family member such as a niece, nephew, or cousin. When this happens the adopted child isn't cut off from having a legal connection with their family members for determining estate division without a will.

Adopting an Adult

Sometimes the adopted "child" is an adult. This may happen for various reasons. Sometimes the adult might want to take care of an incompetent individual. Often a step-parent will want to adopt a spouse's child(ren). In addition, an adult might be adopted by a trust beneficiary in order to have an heir to receive the proceeds of the trust when the beneficiary dies. Keep in mind that the judge may examine the motive behind the adoption of an adult and several factors may be considered, including:

  • Whether the adopting parent has assumed responsibility for the adult
  • What was the age of the adult when they were adopted
  • What is the nature and closeness of the relationship

Adoption, Intestacy Laws and Will Interpretation

Remember, the rules of intestate succession apply to distribute a dead person's estate if they didn't leave a will. In other circumstances, certain beneficiaries may be left out or misidentified, requiring the rules of intestate succession to distribute the estate and to fill in gaps left by a will. Courts usually look at the language in a will to determine whether adopted children are to be included in the estate.

Wills often use terms like: "bodily issue" or "lawful" or "lineal" descendents to describe heirs. A court may tie the distribution of the property set up under a state's rules of intestate succession to either distribute all of the estate property or to define the beneficiaries under the will; a state's intestacy law could control how an adopted person is treated.

Questions for Your Attorney

  • I gave up my child for adoption, how can I ensure they receive part of my estate even though I don't have a relationship with them?
  • My spouse's ex won't let me adopt my step-child. What can I do, if I want my step child to inherit from me? Will my step-child be entitled to my estate if I die?