Families come in all shapes and sizes. And with each family situation comes important considerations for an estate plan. Statistically, more than 7 million people in the United States are adopted, and one-third of Americans have thought about adopting a child. Since the decision to adopt is such a momentous and meaningful undertaking for a family, you’ll be forgiven if you haven’t thought about the role adoption will play in your family’s estate plan. But now that we have your ear, let’s explore some of the key considerations for estate planning with adopted heirs.
Inheritance Rights
One of the most significant impacts of adoption on estate planning is on inheritance rights. Under Virginia law, an adopted child is generally treated as the biological child of their adoptive parents for all legal purposes, including inheritance. Therefore, when it comes to intestate succession (when a person dies without a will) the adopted child has the same inheritance rights as a biological child under Virginia law.
Does Adoption Change the Child’s Inheritance Rights from their Biological Parents?
The Supreme Court of Virginia answered this question a few years ago in the case Kummer v. Donak. The Court explained that once a child is adopted, their legal rights of inheritance are transferred from the biological to the adoptive parents; the child does not retain legal rights from both sets of parents. Of course, if the biological parents would like to divest part of their estate to their child, they can. But they must do so expressly in their will. Otherwise, Virginia courts will find that the child has no legal claim to the estate. However, Virginia law provides an exception to this rule for adoptions by stepparents. When a stepparent marries one of the child’s biological parents, and the stepparent adopts the child, that child is entitled to inherit from both the stepparent and both of their biological parents’ estates.
What About Unadopted Stepchildren?
Under Virginia law, a stepchild will not be treated as a biological or adopted child. This means that when a stepparent dies, the child will have no right of inheritance from their estate. If this situation is not your desired goal, there are tools at your disposal to ensure that your estate plan operates as you’d hoped. But there is no one-size-fits-all solution as each blended family will have different needs and priorities. So, if you are part of a blended family, meeting with an estate planning attorney can help ensure that everyone under your roof is provided for in the way you intend.
Guardianship
Most adoptions in the United States involve minor children. And in any family with minor children, it is important to appoint a guardian. A guardian is the person you designate to take care of your new child in the unlikely event that something happens to you. If you do not designate a guardian, a court will appoint an individual to take care of the child. And while a court will try its best, it may choose someone different from the person you had in mind. When selecting a guardian, it's important to consider factors like the guardian's age, lifestyle, and relationship with your children. You want to ensure that your child is left with someone both willing and able to give them the emotional and financial support that they need.
Conclusion
This article is just a brief summary of how much adoption can affect a family’s estate plan. By working with one of JGB’s experienced estate planning attorneys, we will help ensure that your wishes are properly documented and legally enforceable, so that you can rest easy knowing that your family will be taken care for properly.
David Wilde is a 3L at William & Mary Law School.