10/13/2014 - How Does Adoption Affect Inheritance? Part II

In January of 1972, the Court agreed to hear the Estate of Tafel. The children of the decedent, Tafel, were enjoying the income of a trust created in his Will, with the remainder to be distributed to his child's issue, if any, and if none, the remainder was to be given over to the other siblings. One of Tafel's children, a son, had adopted two children after his father's death. The law at the time supported the presumed intention of the testator: if the son with the adopted children dies before his trust is distributed, the remaining amount would go to his brothers and sisters. Before the case was decided, a new Wills Act was passed in June of 1972 that eliminated the "cut-off date" of the grandparent's death. The Court had for years wanted to address this issue, and so the court's ruling, delayed until November of 1972, made new case law that exists today.

The Court decided that any adopted child, no matter when adopted and no matter how many generations removed from the testator, would share in the inheritance with all issue. The only restriction is that the rule does not apply when the adoptee is an adult (18 or over) when adopted.

All of these laws and cases addressed what should be assumed to be the intent of a decedent if there was no written statement showing his intention to include or exclude adopted children or more remote issue. Many professionally drawn Wills include definitions, either including or excluding adopted children, and such definitions can change the rule about adult adoptees.

A person may change the rule of the statute by specifying in a Will whether adopted children will inherit equally with natural-born children. Inheritance by grandchildren and more remote issue can be similarly specified. If the presumption of today's law is not what you want, be sure to address it in your next Will or Codicil.

Until next week,
-Patti Spencer