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Imagine you’re the parent of two children, one is your natural, and one who is your adopted child. When you draft your will, you leave your entire estate to your “children.” Using the word “children” is not uncommon even where there is only one child at the time of drafting because the testator may have another child in his/her lifetime and using this generic term will relieve the need to update the will. But does the word “child” or “children” impact the rights of an adopted child to inherit under a will? What about the adopted child’s rights, if any, further down the genetic line?

For most scenarios, an adopted child is on equal inheritance footing as natural children unless specifically set forth to the contrary in the will itself. However, there are scenarios, which may impact an adopted child’s inheritance rights or at least raise questions.

For example, what happens if the child is adopted after the testator’s death? An example of this could be an Uncle sets up a trust for his nieces and nephews. After the Uncle dies, his sister adopts an infant son, a new nephew. Does the new nephew inherit under the will even though adopted after the Uncle’s death? Does the adopted “child” actually have to be a child? What if the “child” is adopted at 18 or 21 or even 35?

A recent Delaware County Court of Common Pleas Opinion, In re: Trust Under Will of William M. Armistead, Docket No. 150 of 1957, dealt with many of the above issues. In this particular case, William M. Armistead died in 1955 and had his will probated that same year. In Mr. Armistead’s Will, he had a provision that set up a trust to benefit his wife and descendants. It specifically stated, “upon the death of a daughter of mine, my trust shall distribute the share of the income to which such daughter was entitled during her life to and among her issue…” One of Mr. Armistead’s daughters (hereafter “Daughter”) passed away. Under the terms of the will, Daughter’s own children and subsequent issue become the beneficiaries. One of Daughter’s children, and recipient of Daughter’s portion of trust income, is John. John married a woman with a 14-year-old daughter, Lynne. When Lynne was 23, John adopted her. John and his wife later divorced and John passed away.

Daughter’s portion (which was John’s portion) now passes to John’s children or issue. The Court was faced with the question of whether or not Lynne was eligible to inherit the trust benefits under Mr. Armistead’s will. Did the fact that Lynne was adopted preclude her from inheriting John’s share? Did the fact that Lynne was adopted after the age of 18 preclude her from inheriting? The Trial Court ultimately held “the terms ‘issue,’ ‘child,’ and ‘children’ in a will presumptively include children that were adopted regardless of the date of adoption and will include those adoptees who were adopted as adults as long as a parent-child relationship existed between the adoptee and the adopter during the adoptee’s minority. The only caveat to this rule of construction is that a testator can express a contrary intent in his or her will and it will be honored so long as it can be ascertained with reasonable certainty.” In this case, a hearing had to be scheduled to determine whether there was a sufficient parent-child relationship between Lynne and John before the adoption took place.

If you are asking yourself whether you have rights under a family member’s will simply because you were adopted, or if someone is challenging your inheritance rights, contact an experienced lawyer – contact the lawyers at The Pagano Law to schedule a free consultation.

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