How does adoption affect inheritance?
The question of the rights of inheritance of adopted persons has a long history in this Commonwealth. Until 1855, adoption needed the approval of the state legislature. Then the legislature got out of the adoption business, moving it to the judicial system. The Wills Acts of 1855, 1887, 1889 and 1911 all stated that adopted children had the same rights to inheritance as the adoptive parents’ natural children.
But, what about adopted grandchildren and more remote descendants? What were their rights in regard to inheritance? That question was slow in being addressed. The question of adopted grandchildren’s standing to inherit was raised especially when a child who had no natural children passed away. Often that child’s siblings didn’t want to see this share go "out of the bloodline" to adopted children.
Another issue was how late in life a child could adopt and still have the adopted children considered as issue in "Grandfather’s Estate." The Wills Act of 1917 set a cut-off date of the date of the signing of the Will in question. Any child adopted after the date of the signing of Grandfather’s last Will would be presumed not to be counted among his child’s children or more remote descendants. The idea was to stop this sort of thing: the 65 year old son adopts his 30 year old girlfriend so she would inherit his share.
Relief from that presumption came in a curious way with the Estate of Caves in 1937. With this case, the court ruled that if the decedent dies intestate, grandchildren adopted any time before grandfather’s death were included as issue. This meant that adopted children were given more protection in the case of intestacy than if a Will governed distribution.
This remained the law until the Wills Act of 1947 was passed. The rebuttable presumption became that adopted grandchildren of a testator were assumed to be issue of the testator and therefore inherit along with his or her fellow grandchildren. However, the grandchildren had to be adopted before the death of the testator. This moved the "cut-off date" forward for both the testamentary case and the intestate case, but still left those children adopted after Grandfather’s death out in the cold.
This remained the case until 1972. 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.
