Where Adoption and Inheritance Cross Paths
When a Texan dies without a will, the decedent’s property passes to his or her heirs in accordance with the laws of intestate succession. Adoption may affect inheritance if either the decedent or an heir is a part of what is known as the adoption triad. The adoption triad consists of the biological parents, the adoptive parents, and the adopted child. This article explains the effects of adoption on inheritance for each member of the adoption triad. Additionally, this article suggests best practices for attorneys who find themselves responsible for, as well as individuals who want to avoid, the legal effects of an intestate estate.
The Adopted Child
An adopted child is the son or daughter of their adoptive parents for all purposes, including inheritance. An adopted child and the adopted child’s descendants inherit from and through the adoptive parents and their kindred as if the adopted child were the biological child of the adoptive parents. An adopted child also may inherit through his or her biological parents, if the right to inherit was not terminated in the adoption court’s order terminating parental rights.
The Adoptive Parents
The adoptive parents and their kindred inherit from and through the adopted child as if the adopted child were the biological child of the adoptive parents.
Biological parents may not inherit from or through the child they placed for adoption.
In the case of adult adoption, which is generally defined in Texas as the adoption of a person age 18 or older, an adopted adult may not inherit from or through the adult’s biological parents, and the biological parents may not inherit from or through the adopted adult.
Determination of Heirs Through Court Proceeding
When a decedent dies without a will, the decedent’s heirs, as well as the heirs’ respective shares and interests in the decedent’s estate, may be determined through a proceeding to declare heirship. In a proceeding to declare heirship, the court is required to appoint an attorney to represent the interests of any unknown heirs. The court-appointed attorney will perform an investigation into the identity and location of the decedent’s heirs, including any heirs who were adopted or placed for adoption.
Practical Considerations for Attorneys
An adoption placement may be difficult for an attorney to ascertain for various reasons. Sometimes women do not share that they placed a child for adoption, even with close family members or friends. Sometimes men are not aware of the existence of a biological child that was placed for adoption by the biological mother. Moreover, it is difficult to unseal parental termination orders, especially from years past, to determine if the child’s right to inherit from their biological parents was terminated. Despite these potential roadblocks, attorneys representing the applicant or the unknown heirs in a proceeding to declare heirship should make reasonable inquiries into whether the decedent ever: (1) placed a child for adoption, (2) adopted a child, (3) had a biological child that was adopted as an adult, or (4) adopted an adult. Such inquiries are required for due diligence, and if discovered, these actions can significantly impact inheritance under the laws of intestacy.
Avoid Surprises by Executing a Will
Texas inheritance laws do not prevent biological or adoptive parents from disposing of their property in any manner of their choosing through a valid will. Thus, if a decedent has a valid will, the scenario discussed above should never become an issue. Regardless of whether adoption is part of your story, all individuals are advised to obtain a comprehensive estate plan to devise their estate as they wish. The attorneys at Farrow-Gillespie Heath Witter LLP are here to help.
Jessica Dunne is an associate attorney at Farrow-Gillespie Heath Witter. Jessica has substantial experience in probate, guardianship, and trust litigation, with a special interest in adoptions. Jessica graduated cum laude from Baylor Law School in 2011 where she was the recipient of the Presidential Scholarship. Jessica is uniquely equipped to represent individuals who are pursuing adoption because she is an adoptive parent herself.