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.

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