Are Adopted Children Eligible for Inheritance in California?
Adopted children have the same rights to inheritance from their adoptive parent(s) as biological children do. Here is everything you need to know about whether or not an adopted child can inherit from their biological parents.
Even in cases where the adoptive parent dies before including their adopted child in their will, the child will still inherit as any biological child would. However, since legal adoption terminates the entire parent-child relationship between a child and their biological parent, the child is no longer entitled to any inheritance from the biological parent. However, there are some exceptions in California where an adopted child can receive an inheritance from their biological parent.
When a Child Can Inherit from their Biological Parent
An adopted child is only able to inherit from their biological parent if the parent-child relationship was not terminated in the legal adoption. California Probate Code Section 6451 describes the requirements that must be met in order for the parent-child relationship to still exist after adoption, allowing the child to inherit from their biological parent:
1. The birth parent and the adopted child lived together at any time as parent and child
2. The adoption of the child was by the spouse of either birth parent or after the death of either birth parent.
The birth parent or the relative of the birth parent cannot inherit from the adopted child on the basis of a parent and child relationship, unless it satisfies the requirements above. The only exception to this is if the relative of the parent is a whole blood sibling of the adopted person.
If the parent-child relationship does not meet both of these requirements, the adopted child has no rights to any inheritance by their biological parent unless it is specifically stated in the will.
Can an Adopted Child Inherit from their Biological Parents Without a Will?
No, an adopted child cannot inherit from their biological parents after legal adoption without specifically being mentioned in the will or testamentary instruments of the parent.
Can an Adopted Child Inherit from their Adoptive Parent Without a Will?
There are circumstances where an adopted child may find themselves excluded from the will of their adoptive parent. This can happen by accident, for example, an adoptive parent might not have included their new adoptive child in their will if they passed away unexpectedly. Another circumstance could be the birth of a child after a parent died and their testamentary instruments were already executed.
California Probate Code Section 21115 has guidelines that specify how the child can inherit in situations such as these. The Probate Code states that if a child is excluded from the decedent’s testamentary instruments, said child will be entitled to the same amount of their adopted parent’s estate that they should have received if the parent’s will had not been executed. This will usually require other shares of the estate that have already been shared to be reduced or abated in order for the child to receive their correct inheritance of the estate.
Can an Adopted Child be Ineligible for Inheritance from their Adoptive Parent?
Any adopted child that is born or adopted after the execution of all testamentary instruments and was not provided for is considered an omitted child in the inheritance. An omitted child usually has the right to their equal share of their adoptive parent’s estate as described above, however, there are three exceptions where an omitted child will not receive an inheritance share:
- The decedent’s failure to include the child in their testamentary instruments was intentional and appears clearly in the instrument.
- The decedent has one or more children and at the time the testamentary instrument was executed, the decedent transferred by will all of the decedent’s estate to the parent of the omitted child.
- The decedent intentionally provided for the child by transfer outside of the testamentary instrument so that the transfer would fully provide for the child instead of any testamentary provision.
If an omitted child falls under any of these circumstances, they are not entitled to any inheritance from their adoptive parent.
If you have any more questions about inheriting from your biological parents as an adoptive child, contact us. Get your free consultation with one of our experienced Family Law Attorneys today!