A question arose today in an online ask-a-lawyer forum that I monitor, so I decided to write a blog post about the subject because this does come up every so often.
The two most common questions people ask with respect to adoption and inheritance are:
- Can an adopted child inherit from adoptive parents?
- Can an adopted child inherit from biological parents?
Can an Adopted Child Inherit from Adoptive Parents?
In most states, adoptees have the same rights to inherit from their adoptive parents as biological children. This is true even if adoptive parents die without a will. The adopted children will inherit the same as their biological children. Adopted children can even contest wills the same as biological children. For all intents and purposes, adopted children are treated the same as biological children. This is true in the following states in which I am licensed: Alaska, Arizona, California, Colorado, Oregon and Tennessee.
Can an Adopted Child Inherit from Biological Parents?
This is where state laws vary the most.
The general premise is that the legal parental rights of one or both biological parents are terminated by an adoption, with the result that the adopted child no longer has a legal right to inherit from the biological parent(s) whose parental rights were terminated, unless the decree of adoption specifically provides for continuation of inheritance rights.
That doesn't prevent a biological parent from creating a will that expressly leaves things to a biological child, but the child should be identified by name and date of birth. Referring to "my children" will not create a right of inheritance for a child over whom parental rights were terminated by adoption. Although an adopted child can be listed as a beneficiary in a biological parent's will, in most states he or she cannot contest the will of a biological parent that gave up his or her parental rights.
In some states an exception is made whereby a child adopted by a stepparent after his or her birth parent dies can still inherit from the deceased birth parent, as long as the deceased birth parent's parental rights had not been terminated prior to his or her death. States that have adopted this exception include Arizona, Alaska, California, Colorado, Oregon and Tennessee.
State laws on this vary substantially, and individual circumstances can vary as well, so be sure to consult an estate lawyer if you have any questions regarding your particular circumstances.
How to Protect the Inheritance Rights of an Adopted Child
The best thing birth and adoptive parents can do to ensure the outcome they desire with respect to adopted children and inheritance rights is make a valid will that clearly specifies who is to inherit what and who is not to inherit.