As a general proposition, I think it’s pretty safe to say that it’s an undying love for children and a desire to help foster them throughout their lives that drive most people to adopt in the first instance. Regardless of whether the adoption takes the form of a child from another country or the child of your newly betrothed, there may come a point in your life where you eventually ask what happens to that child if I pass away. Does an adopted child in New York have the same inheritance rights as one’s natural child, or will the law somehow penalize that adopted child when it comes to receiving a portion of his parents’ estate?
These inheritance issues usually only take center stage under one of a couple circumstances: either a child’s adoptive parents pass away intestate (without a will) or the child was adopted after a will was drafted but never included in a later will. As a general rule, I’m happy to report that adoptive children in New York have inheritance rights that are identical to those of natural born children. What does that mean exactly? Allow me to explain, and I’ll pose my responses in the form of some common hypotheticals.
Scenario One – Assuming there is a Will and the adopted child is named in the Will, the adopted child takes from the estate without any problems according to the terms of the Will. The caveat? UNLESS (I know, there always seems to be an unless) the child is expressly disinherited and written out of the Will, in which case he does not receive a portion of the estate.
Scenario Two – Assuming there is no Will (meaning the parent(s) dies intestate), an adoptive child is entitled to receive an intestate share of the estate just as would a natural born child.
Scenario Three – Assuming there is a Will but it was drafted before the arrival of the adoptive child, the adopted child still receives a portion of the estate. Under New York’s omitted child statutes, an adoptive child is treated as a natural born child and is entitled to receive the equivalent of his intestate share of the estate. The only catch – just as above, the adoptive child can’t be expressly written out of the Will in order to take.
Scenario Four – Can an adoptive child inherit from a biological parent in New York? Interestingly enough, under some circumstances, the answer is yes. As a general rule, if a biological parent has given up all legal rights to his/her/their child, then a child cannot receive anything from that parent except under the limited circumstances that the parent expressly makes a bequeath to them in a Will. That said, take for instance a situation where a step-parent marries the biological parent of a child and thereafter adopts that child. Under these circumstances, not surprisingly, the adoptive child is entitled to inherit from his biological parent. There is obviously some cross-over here between the areas of family law and estate planning, so it may be wise to consult with differing counsel that specialize in each area to ensure your wishes and interests are protected.
Based on the above, it should be more than obvious that the law treats adopted children no differently than natural born children. While it might once have been the case where our laws failed to recognize that there should be no distinction in treatment between natural and adoptive children, times have changed – for the better. Families can rest assured that the love they have chosen to share with their new members will be fully recognized as far as those members’ inheritance rights are concerned.