Adopted Children and Inheritance

Are you an adopted child? Are you confused about whether you are entitled to receive an inheritance from your biological family or your adopted family? If so then read on and, hopefully, all will become clear.

The legal position is governed by section 39 of the Adoption Act 1976 which states that an adopted child is to be treated in law as the legitimate (i.e. born within wedlock) child of the adoptive parents and not the child of any other person (i.e. not the biological parents).

The section has effect-
a) in the case of adoptions before 1st January 1976, from that date; and
b) in the case of any other adoption, from the date of the adoption; and
c) upon the construction of other laws passed before or after the adoption; and
d) in respect of things done, or events occurring, after the adoption or after 31st December 1975 whichever is later.

This means that the rules of intestacy will entitle an adopted child to be treated of equal standing to a biological child of a deceased adoptive parent.

For example, if an adoptive mother (M) dies without a surviving spouse but with one adopted child (A) and two biological children (B & C) then M’s estate will be divided equally three ways between A, B and C. A will not be treated any differently in this respect than B or C. A will not however be entitled to inherit under the intestacy rules from his/her biological parents’ estate as the inheritance rights to the adoptive parents’ estate replace the rights to the biological parents’ estate.

This also means that an adopted child will be treated in the same way as a biological child in being eligible to bring an Inheritance Act claim against their adoptive parent’s estate. That inheritance claim could be for reasonable financial provision from the estate. They may also challenge the validity of the Will if they have grounds for, say, lack of testamentary capacity, undue influence or want of knowledge or approval. The only criterion they will need to satisfy (as a biological child also does) is that they are a disappointed beneficiary. In other words they must be able to show that they benefit under the terms of a previous Will or under the intestacy rules if there is no previous Will.

If an adopted child wishes to make an inheritance claim then the claim must be brought under section 1(1)(c) of the Inheritance (Provision for Family & Dependants) Act 1975, often known simply as the 1975 Act. This section states that a child of the deceased is eligible to bring a claim against the estate and are eligible to do so upon evidence of the deceased being their parent (usually upon the production of a birth certificate). A further section of the 1975 Act (section 1(1)(d)) provides for a “child of the family” to bring a claim against a deceased person’s estate. However, it is more difficult to prove eligibility under this heading as you need to be able to show that the deceased was married to your parent and assumed the responsibility and privilege of a position as parent for you.

An adopted child does not need to worry about section 1(1)(d) of the Inheritance Act, as they are automatically eligible (as a biological child is) under section 1(1)(c) of the Act to bring a claim against their adoptive parents’ estate. The only evidence they need to prove eligibility is the production of their adoption certificate. This places them in the same position as a biological child. That is to say, they don’t need to evidence the nature of the relationship as a “child of the family” does under section 1(1)(d).

The Court will then need to decide whether the provision in the Will (or provision under the intestacy rules) is reasonable for the adopted child based on a number of factors outlined in section 3 of the 1975 Act, including their financial need for the money and any disability they may suffer from. If the Court deems the provision to be unreasonable then it can redistribute the estate according to what it believes is reasonable.

An adopted child cannot also pursue a claim under the 1975 Act against their biological parents’ estate, as their right to do so has passed to the adoptive parents’ estate. However, they may still be able to challenge the validity of their biological parents’ Will on the grounds of lack of testamentary capacity or undue influence etc if, and only if, they are a disappointed beneficiary under a previous Will (i.e. they cannot rely on the fact that they are a beneficiary under the intestacy rules if there is no previous Will as they have lost their right to an inheritance from their biological parents’ estate under the intestacy rules).

If you are an adopted child and require assistance with inheritance issues then please call us on 0808 139 1599 for a free case assessment. Alternatively email lee.dawkins@sleeblackwell.co.uk