Every state’s intestate laws contain provisions that include children adopted into a family within the class of the adopting family’s “children” or “issue” in most respects.
Being included within this class generally allows adopted children to receive the same portion of the intestate estate that any natural child of the same degree of relationship would receive.
Although the child of an adopted family is typically an heir, some states have provisions within their laws that may prevent an adoptee from sharing in the estate based upon facts surrounding the adoption.
For instance, Illinois’ intestate laws contain this provision:
Sec. 2‑4. Adopted child.
An adopted child is a descendant of the adopting parent for purposes of inheritance from the adopting parent and from the lineal and collateral kindred of the adopting parent and for the purpose of determining the property rights of any person under any instrument, unless the adopted child is adopted after attaining the age of 18 years and the child never resided with the adopting parent before attaining the age of 18 years, in which case the adopted child is a child of the adopting parent but is not a descendant of the adopting parent for the purposes of inheriting from the lineal or collateral kindred of the adopting parent. The share to which the child or descendant is not entitled shall be distributed in the same manner as if the child or descendant never existed. For purposes of inheritance, the changes made by this amendatory Act of 1997 apply to all decedents who die on or after January 1, 1998. For the purpose of determining the property rights of any person under any instrument, the changes made by this amendatory Act of 1997 apply to all instruments executed on or after January 1, 1998.
While the intent of this law is not set forth within the statutory text, its application prevents same-sex couples from using adoption to grant each other with family rights associated with the parent-child relationship.
People are generally entitled give their property to any person that they wish, without regard to their family relationship with one another. Same-sex couples can typically avoid the concerns of their disqualification as heirs by simply creating wills that name each other as beneficiaries of their individual estates.
However, being classified as someone’s child can occasionally entitle a person to property rights that can be frustrated by these types of laws.
The matter of Patricia Spado’s adoption by Olive Watson can demonstrate the importance of being classified as someone’s child.
Watson’s father, Thomas, created a multimillion dollar trust that named his grandchildren as the beneficiaries. If Spado qualified as Olive Watson’s child based upon her adoption by Olive, then Spado would also qualify as the grandchild of Thomas Watson and be entitled to a share of the trust.
Although the issue pertained to the legitimacy of Spado’s adoption by Olive Watson, the controversy was based upon the rights that Spado would acquire if she is recognized as Watson’s child.
Similarly, adopted children are generally barred from participating in the distribution of a natural parent’s intestate estate when that parent does not have any parental rights at the time of death. (A child who is adopted by a step-parent does not lose any rights as an heir of the natural parent who is married to the step-parent.)