In many states, the words child, children, or issue means biological and sometimes adopted children. Very seldom is a child within a will or trust construed to be a child with rights to inherit if they are a step-child. Therefore, it is necessary to be very clear when a document is being written as to what the word “child” really means. Often, when a person dies without a will (intestate,) only biological and legally adopted children are heirs.
In one case in Massachusetts, a woman’s husband died leaving a son from a previous relationship. The widow wished to draft a will leaving everything to her husband’s son, (her step-son.) However, after talking to her estate planning attorney, it was determined that she also felt that her siblings would contest the will, since there was a significant amount of money, and while the family did not have the right to inherit, she did not want to have her step-son be required to go through the process of defending the will.
As a solution to the foreseen problem, at the age of 83 she adopted her step-son, who was then 60 years old. Upon her demise, all of her assets went to her son, (formerly her step-son,) and no one could contest the will since they were not parties with standing to contest. The plan worked, and the technique of the adoption was the saving grace for all parties.
In a case that was decided in Virginia in 2011, a person died intestate without any child, parent, sibling, or spouse. The only known heirs were distant cousins, and the administratrix determined that three people she believed were cousins were really children of the decedent’s biological sister. She later determined that these children had been adopted, and the administratrix then filed a lawsuit to determine that these children were not heirs-at-law. After significant litigation and appeals, the court determined that the laws in Virginia were clear that in this case, the children were not the decedent’s heirs-at-law because their mother’s adoption severed their legal ties to the decedent.
While this short synopsis does not cover all of the legal issues determined by the court, also at issue was determining whether a minor adoption was the same as an adult adoption. The court felt that the law was substantially the same and did not differentiate between minors and adults.
Needless to say, there were significant emotional issues and probably hurt feelings, since certain family members who thought they were heirs were determined to not be. Had the decedent written a will, this probably would not have been the case, as the will would have been specific as to the heirs who would have received her estate, which was valued at over $600,000.
The moral of the story is to be clear when writing documents and be sure that they documents are drafted properly to establish clear inheritance wishes.
Hyman G. Darling, Esq.
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