In the eyes of the law, adopted children are essentially treated like biological children. This means that adopted children have the same rights to inherit from their adoptive parents as biological children. But one aspect of the law that might be less intuitive is that the relationship between the adopted child and the biological parents is considered to be severed for legal purposes. Below, learn more details about the estate planning issues unique to families with adopted children, as well as exceptions to the general rule.
Inheritance Rights of Adopted Children When There's a Will
When you make a will, you can leave property to anyone—friends, family members, charities—you please. You can't usually completely disinherit a spouse, but otherwise you are generally free to include or exclude anyone you like.
Adopted Children Are Included in the General Group of "Children"
When an adoptive parent dies and leaves property to "my children" in their will, this group includes their formally adopted children as well as their biological children unless they've specified otherwise. By contrast, if the child's birth parents left property to "my children" in their own will, their biological child who has been adopted by another family would not be included in this group. This is because the adopted child is legally treated as the adoptive parents' child and not the birth parents' child. Of course, the birth parent is free to leave gifts to the adopted child by name.
Adopted Children Are Protected From Being Unintentionally Excluded
All states have laws that protect children from being accidentally left out of a will, and these laws apply regardless of whether the child is a biological or adopted child. If it appears that a child was unintentionally excluded from your will, a judge can give that child a portion of your property. So, for example, if you used a will to leave everything to your son, and then after making your will you adopted a child but forgot to update your will, your adopted child might be entitled to part of your estate. But it's always best to update your will after major life events like adoption, so that your intentions are crystal clear.
Inheritance Rights of Adopted Children When There's No Will
If you die without a will or other estate plan, the probate court will determine who inherits your property by using a hierarchy that's set out in state laws. These laws are called "intestacy laws." (See What Happens When You Don't Have a Will?) Spouses and children are given top priority, while more distant relatives fall lower in the hierarchy and receive property only if closer relatives are not available.
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. So if the adoptive parent did not leave a will, the adopted child would very likely still receive a share of the property under the state's intestacy laws. The same is not true if the birth parent did not leave a will.
Inheritance Rights of Adoptive Parents and Siblings
Just as adopted children gain inheritance rights to their adoptive parent's property and lose inheritance rights to their birth parent's property, parents and siblings also gain and lose inheritance rights. For example, if an adopted child dies without a will, the adoptive parent has the right to potentially receive a share of the child's estate, while the birth parent does not have this right. (But note that parents are sometimes lower on the hierarchy than spouses and children.) 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.
The Special Case of Step-Parent and "Second Parent" Adoptions
Step-parent adoptions and "second parent" or "co-parent" adoptions (which are used by a parent who is not married to the legal parent of the child) work a little differently. The details depend on your state's laws, but in many cases, a child can be adopted by a step-parent or other adult without severing legal ties with the birth parents. 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. Jonas 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.
To find out how your state's laws apply to your specific circumstance, see a good family law or estate planning attorney for more tailored help.
Gifts Can Be Made Even Without Inheritance Rights
Although adoption usually severs legal ties with the birth family, it's obviously 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 that continues 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 give gifts to the other through estate planning. So although the law doesn’t provide for inheritance rights, anyone from either family can freely leave gifts to one another though wills, trusts, transfer-on-death deeds, beneficiary designations, and other estate planning tools.