The inheritance rights of adopted children

What are the inheritance rights of adopted children?

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Are you adopted and unsure whether you have the right to receive an inheritance from your biological family or your adopted family? This short summary of the inheritance rights of adopted children may help you to gain a better understanding of the law.

The legal position of an adopted child 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 child of the adoptive parents and not the child of any other person.

The section takes effect from the following dates:
a) in the case of adoptions before 1st January 1976, from that date;
b) in the case of any other adoption, from the date of the adoption;
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 intestacy rules (which operate if someone dies without a Will) entitle an adopted child to be treated of equal standing to a biological child by an adoptive parent who has passed away.

For example, if an adoptive mother dies without a Will, leaving no surviving spouse but with one adopted child (A) and two biological children (B & C), then her 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 parent’s estate, as the inheritance rights to the adoptive parents’ estate replace the rights to the biological parents’ estate; unless they can show that the biological parent treated them as a ‘child of the family’ – see below.

An adopted child will also 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 or challenging the validity of their Will.

If an adopted child wishes to make an Inheritance Act claim then the claim must be brought under section 1 (1) (c) of the Inheritance (Provision for Family & Dependants) Act 1975. This section states that a child of the deceased is eligible to bring a claim against the estate and can do so if they have evidence of the deceased being their parent, such as a birth certificate.

Section 1 (1) (d) also allows a “child of the family” to bring a claim. However, it is more difficult to prove eligibility under this section and an adopted child does not need to worry about this as they are automatically eligible under section 1 (1) (c) with no need to provide evidence the nature of the relationship as a “child of the family”.

When an Inheritance Act claim is made by an adopted child against their adoptive parent’s estate it is necessary to look at whether the financial provision made for them in the Will (or under the intestacy rules) is reasonable. In doing so a range of factors need to be taken into account, including their financial circumstances, their need for money, the size of the estate, the competing needs of any other beneficiaries and any disability they may suffer from.

Adopted children will only be able to pursue a claim under the Inheritance Act against their biological parent’s estate if they can show that they had a relationship with that biological parent and are accordingly classed as a ‘child of the family’. However, even if they are not a child of the family they can still challenge the validity of their biological parent’s Will (on the grounds of lack of testamentary capacity or undue influence, for example) if they were a beneficiary under the previous Will and would stand to inherit if the later Will was declared invalid.

The inheritance rights of adopted children can be extremely complicated and it is recommended that expert professional legal advice is taken.

If you require guidance on the inheritance rights of adopted children then please call us on 0333 888 0407 for a free initial case assessment. Alternatively send brief details to us at i[email protected]

The inheritance rights of adopted children