New York Estate Planning & Elder Law Blog
NOT CUT OFF FROM BIOLOGICAL PARENTS IN EVERY CASE
It is not unheard of for adoptive children to seek out their biological parents and reestablish contact once they are old enough and understand the world much better. The drive to understand who your biological ancestors are, to know where they came from and their story is practically innate or inborn. This is a healthy endeavor as it helps to fill out and expand the adult child’s world view of who they are and may help to explain certain personality quarks. There are also legitimate medical reasons for the decision to reach out to the biological parents, so as to understand medical risks, family medical histories or perhaps even obtain a pool of possible bone marrow or organ donors in the unlikely event that something like that is needed. Those issues speak to the social and emotional issues that revolve around adoption. Legally, however, an adopted child is a veritable stranger to the biological parent in non-stepparent adoptions. Inheritance rights are created in the adoptive child vis-a-vis the adoptive parents. Inheritance rights via the biological parents are severed. The only way that a biological parent can pass property or money on to the child adopted out from them is to specifically include them in their will. A class gift to “all of my children” from a biological parent excludes from its scope children adopted out from them and includes any children that that person adopted.
WHAT HAPPENS WHEN ADOPTION LAW AND INHERITANCE LAWS COLLIDE
Those are sweeping and broad legal rulings that apply in the vast majority of circumstances. What happens when adoption laws interact with, say for example, the anti-lapse statute discussed previously in this blog? One such case recently came to the attention of the New York’s Surrogate Courts and the Court system had to bridge the two different, seemingly competing goals of giving effect to the anti-lapse statute as well as the adoption laws in the context of adoption. In 2005, In The Matter of Murphy a mother who reestablished contact with her biological child left property and money to the adopted out, biological son, who had children of his own. The son, however, predeceased the mother and thus the gift lapsed. The anti-lapse statute only controls when three things exist.
First, there must be a will, the gift must pass to a child or sibling of the testator and the intended beneficiary must have children of their own who can act as the substitute heir or beneficiary. In this case, the first and third condition were true without question. The second condition was more difficult to answer, since the adoption severed all inheritance rights between mother and son. In In the Matter of Piel a similar factual scenario existed, except that the adoptive out child, a daughter named Elizabeth, was not specifically named. Instead, the Elizabeth sought to benefit from an inheritance as a result of a being a member of a class. More specifically, she sought to benefit from being included in the class of grandchildren of the testator. The Court in Matter of Piel ruled that since Elizabeth was adopted out, all inheritance rights were severed and that carried true for all relatives of the adoptive child, not just the biological parent vis-a-vis the child. The Court ruled in favor of the child to receive an inheritance and that the anti-lapse statute applied in In the Matter of Murphy.
The Court in In The Matter of Murphy examined the definition of the term “issue”. Since the mother specifically named the adopted out son in her will, she brought him back into sweep of individuals considered “issue” under the anti-lapse statute. The Court further examined what would happen if the anti-lapse statute would not apply. In the absence of the anti-lapse statute, the property and money that passed to the biological, adopted out son would pass under the state’s intestacy laws. Moreover, if the testator wanted a substitute taker for the property and money that was intended for the predeceased heir he/she must state as much in his/her will and thus nullify the application of the anti-lapse statute. As such, if the Court did not apply the anti-lapse statute, there would be no substitute taker and the property would pass via intestacy laws.