Adopted Child Standard

Trust and Estates Notes DRL ¤117 Ð adopted child can take intestate share if requirements are met ! NOTE: these are all defaults (at least for intestacy), we can explicitly do otherwise as long as we write so in our wills Ð if you donÕt like it, then draft around it ! THIS ONLY GOES IN 1 DIRECTION (child can inherit, but biological parents cannot) !Also note: Godparents nor fake aunts/uncles are not included in the statute ¥ (1) o (a) Right of biological parent to inherit ▪ Birth Parent has NO RIGHT to inherit FROM CHILD if parent gives child up for adoption or parental rights are terminated (stranger adoption ONLY ! this does NOT apply when child is adopted by a family member) ¥ EX: Sara gives birth to Josh and gives him up for adoption. Josh dies. Sara cannot inherit. o (b) Rights of the child to inherit from biological parent ▪ Child given up for adoption has no right to inherit from biological parents ¥ EX: Sara gives birth to Josh and gives him up for adoption. Sara dies. Josh cannot inherit. o (c) Rights of the child and the adoptive parent vis a vis each other ▪ When adoptive parents adopt child, child can inherit from adoptive parents just like a biological child. o Basically adoptive parent and adoptive child have the same legal relationship as if the child was biological ¥ EX: Sara gives birth to Josh and Edna adopts him. Edna dies. Josh can inherit from Edna. ▪ When adopted child dies, adoptive parents can inherit from adopted child just like biological parents ¥ EX: Sara gives birth to Josh and Edna adopts him. Josh dies. Edna can inherit from Josh. (this would be if josh didnÕt have a spouse or issue) o (d) Rights of the child and biological parents when a parent remarries and the stepparent adopts ▪ Couple married. They have baby. They get divorced. Child stays with mother. Mom gets remarried. New husband adopts child. Normally an adoption would cut off ties to birth parent, but here, mother would still have rights. ¥ EX: Sara gives birth to Josh and later marries Eddie. Sara signs form for Eddie to adopt Josh. o Sara dies. Josh can still inherit from Sara; or o Jose dies. Sara can still inherit from Josh. ▪ So when birth or adoptive parent marries or remarries and consents that the stepparent may adopt such child, such consent SHALL NOT relieve the consenting parent of any parental duty toward child. o (e) Rights of the adopted-out child- for INTESTACY!!!!! ▪ Addresses Intra-Family Adoption: when the adopted child stays w/in the family ▪ An adopted out-child can still inherit from biological family if: ¥ 1) Look to Decedent: is the adoptive childÕs birth grandparent or is descendant of such grandparent (ie, aunts, uncles, cousins); AND ¥ 2) Look to the adoptive parent: o (i) is married to the childÕs birth parent o (ii) is the childÕs birth grandparent, or o (iii) is descendant from such grandparent ▪ However, an adoptive child who is related to the decedent both by birth relationship and by adoption shall be entitled to inherit only under the birth relationship unless the decedent is also the adoptive parent, in which case the adoptive child shall then be entitled to inherit pursuant to the adoptive relationship only. ¥ (2) o (a) Except as hereinafter stated, after the making of an order of adoption, adopted children and their issue thereafter are strangers to any birth relatives for the purpose of the interpretation or construction of a disposition in any instrument, whether executed before or after the order of adoption, which does not express a contrary intention or does not expressly include the individual by name or by some classification not based on a parent-child or family relationship. o (b) Applies when someone dies with a will-As to the wills of persons executed after 8/31/1986, or to lifetime instruments executed after such date whether executed before or after the order of adoption, a designation of a class of persons described in EPTL 2-1.3 shall, unless the will or instrument expresses a contrary intention, be deemed to include an adoptive child who was a member of such class in his or her birth relationship prior to adoption, and the issue of such child, only if: ▪ (1) an adoptive parent (i) is married to the child's birth parent, (ii) is the child's birth grandparent, or (iii) is a descendant of such grandparent, and ▪ (2) the testator or creator is the child's birth grandparent or a descendant of such grandparent. o (c) A person who, by reason of this subdivision, would be a member of the designated class, or a member of two or more designated classes pursuant to a single instrument, both by birth relationship and by adoption shall be entitled to benefit only under the birth relationship, unless the testator or creator is the adoptive parent, in which case the person shall then be entitled to benefit only under the adoptive relationship. o (d) The provisions of this subdivision shall not impair or defeat any rights which have vested on or before 8/31/1986, or which have vested prior to the adoption regardless of when the adoption occurred ¥ ***The only way an adoption can take place is with both biological parents consent. Adoption can occur without consent only where there has been death of the biological parent or termination of parental rights by the court. Adoption problems