Children can receive bequests under a will from biological parents, adoptive parents or anyone else. The issue of inheritance rights only comes up when they do not, either because there was no will, or because there was, and the will fails to name the child. In New South Wales, roughly speaking, under The Adoption Act (2000), The Succession Act (2006), and The Succession Amendment (Intestacy) Act (2009):
 

  • an adopted child has the right to inherit from adoptive parents, just as if he or she were a birth child of those parents and
  • an adopted child may, under certain very limited circumstances, also have a right to inherit from biological parents.

 
If you are an adopted child or the parent, guardian or representative of an adopted child, and you have questions about inheritance rights, it would be prudent to contact an estate lawyer to work through the nuances of the particular situation, as soon as possible.
 

The Right to Inherit from Adoptive Parents

 
If a parent dies without a will, an adopted child will ultimately share in the estate just as a birth child would, according the statutory order of eligible relatives. Basically, everything goes to a surviving spouse, and if no spouse survives, then equally among all children. If both a spouse and children survive, but one or more of the children are not children of the surviving spouse, then the estate may be shared concurrently. Beyond that and into the realm of surrogacy, adoption by same-sex couples and the rights of Indigenous persons, the situation can become complicated far beyond the scope of this article.
 
If a will exists but makes no provision or inadequate provision for a child, including an adopted child, the child may contest the will, making a family provision claim.  In deciding the claim, courts may look at a number of factors, including whether a parent and adult child were estranged, for example, or whether the child otherwise has sufficient means to get on in life. The individual’s status as an adopted child, however, should not enter into the calculation.
 

The (Limited) Right to Inherit from Biological Parents Even After Adoption

 
If a biological parent, who has surrendered legal rights to a child to permit adoption by someone else, thereafter dies without a will or fails to provide for the child in a will, that child will generally not have standing to make a family provision claim. In the language of the law, the child is no longer an “eligible person”. The adoptive relationship essentially replaces and extinguishes the biological one.
 
No rule is without exceptions, however. The right to inherit may continue if:
 

  • the adoption occurred years after the child’s birth,
  • the biological parent died before the adoption occurred, or
  • after adoption, the child re-established a relationship with the biological parent, becoming financial dependent on him or her.

 
In these situations, and possibly others, a court may recognize a relationship sufficient to permit the child to make a claim against the biological parent’s estate.
 
The law can seem like a crude, blunt tool for dealing with the subtleties of human relationships between spouses, partners or parents and children. The Adoption Act, Succession Act and more recent amendments attempt to recognize a broader range of relationships than might have previously have been protected under law.  Together, the laws may expand inheritance rights in some ways.
 
If, as an adopted child, you believe that you have a right to claim an inheritance from either an adoptive parent or a biological parent, please call us at Owen Hodge Lawyers 1800 770 780 or reach out to us via email at https://www.owenhodge.com.au/contact/ to schedule a consultation.  The assistance of a persistent and creative estate expert is sometimes required to succeed in a claim involving more complex family relationships. Do not delay, however, as claims must be made within 12 months of the parent’s death. Our offices are conveniently located in Sydney and Hurstville, and we look forward to meeting with you at your earliest convenience.

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