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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:
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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.
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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 somewhat
recent matter involving 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 pertains to the legitimacy of Spado's adoption by Olive Watson, the controversy is
based upon the rights that Spado would acquire if she is recognized as
Watson's child. (READ
AN ARTICLE HERE) (JULY
2009 UPDATE HERE)
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.)
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