Adoption and Intestacy
2 April 2020 by James Bird
Unfortunately it is still fairly common for people to go through life without making Wills and whilst there are rules in place (the intestacy rules) that dictate what happens to an estate in these times, they do not cover everything.
One aspect, which is not always crystal clear, is what happens to the entitlement of children who have been adopted. Usually you would automatically think of it from the perspective of the children, but what about the parents (biological and adoptive)?
When children are adopted, an order is being made which effectively changes the parents of the child. The adoption order will transfer the rights and responsibilities of the biological parent to the adoptive parent. But what happens when one of these people passes away. There are 3 main parties to consider: the child, the adoptive parent, and the biological parent.
Since an adoption order transfers the responsibility for the child to the adoptive parent, the child would effectively be deemed a child of the adoptive parent only. This means that should the adoptive parent pass away, they would effectively be treated under the intestacy rules as a child of the adoptive parent from the date of the adoption order. If the adoptive parent had any other children (adopted or biological) then they would all have an equal entitlement to the estate along with the adopted child.
The adoptive parent
If the adoptive parent has died without making a Will, the intestacy rules would take effect. If the adoptive parent did not have a surviving spouse, then the estate would be split equally between all of their biological children and their legally adopted children. The only children not automatically included in this scenario are step-children. Any adopted child is ranked equally to those of biological children of the adoptive parent.
The biological parent
As mentioned above, once a child is adopted, the responsibility for the child passes from the biological parent to the adoptive parent. Therefore, the biological parent (after the date of the adoption order) no longer has any obligation towards the child, including making provision for them after their passing.
Given the above, under the intestacy rules, if a child has been legally adopted by someone else, they are no longer deemed to be a child of the biological parent and therefore not entitled to automatically inherit their estate.
Adopted children can try to make a claim against the estate of a biological parent but they would need to take their own advice in respect of this.
Ultimately the best action which can be taken is for a Will to be made as it is then clear what the deceased’s wishes are and these can be carried out without any worries of uncertainty. At Fisher Jones Greenwood we offer a charitable Will writing service or can provide advice on any aspect of administering estates on a fixed fee basis, call 01206 700113 or email [email protected]