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Friday, April 19, 2013

Does an adopted child, reunited with birth father, inherit on intestacy?

Families are complicated, and this becomes painfully obvious when someone dies without a will. It can be hard to reconcile legal rights with what some may see as moral rights. A reader wrote to me asking about a complicated family which involved an adoption. His question and my answer are below:

"When a child is adopted legally and reunited with his birth father, with a continuing relationship for almost 30 years and the birth father dies intestate and has no other children, does the child inherit the birth father's estate?"

No, the child doesn't inherit the birth father's estate.

When a child is adopted, the adoptive parents become the parents for all legal purposes, and the birth parents are no longer legally considered the parents. This means there are no obligations on either party because of the birth relationship, and no rights arising for either party because of the birth relationship. The birth relationship has been severed.

It's wonderful that the child and the birth father were reunited and had what would seem to be a good relationship that lasted 30 years. However, this doesn't reinstate the child as a legal child of the father.

If the father wanted the child to inherit his estate, he should have made a will that gave him the estate. Of course, it's possible that the father didn't realize he needed to make a will to give his estate to a birth child. That's one of the major perils of not asking for professional advice. It's also possible that he did realize it, but just never got around to making the will.

The father's estate will be distributed according the laws of intestacy in the province in which he lived. There are some differences between provinces, but the general rules are that if the deceased had no spouse and no children, the estate would be distributed to his parents, and if his parents are no longer alive, then his siblings. I can see the moral argument here - that it would seem more fair to give the estate to a birth child with whom he had a good relationship than to give it to siblings or maybe even nieces and nephews with whom he may have had no relationship.

But according to the law, the birth child is not his child any more, and has no more standing to inherit the estate than a stranger would.

3 comments:

  1. Lynne,

    Re: Do I still need a lawyer if my spouse's will names me, RRSPs name me, and property is joint?

    Your response suggested that there was no need to probate but under the new laws in Ontario whereby the estate can be reassessed for up to four years post application for executorship and given that RRSP assets technically flow through the estate before going to the beneficiary, would it not be wise to probate the will?

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  2. What if the child was never legally adopted but the parents legally married and later signed a separation agreement. I'd the child entitled to any inheritance?

    ReplyDelete
    Replies
    1. Your question isn't really clear about which parents you're talking about - the biological or the "adoptive" ones. But if the child was never legally adopted, he or she is still the child of the biological parents and not the other parents. So if the biological parents die, yes the child is entitled to an inheritance. If the "adoptive" parents die, no the child is not entitled to an inheritance. "Entitled to an inheritance" means a right that they'd get if there was no will, or if the child was left out of a will. Of course, either set of parents can choose to leave the child something in their wills.

      Lynne

      Delete

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