In Michigan, the Estates and Protected Individuals Code determines the inheritance rights of adopted children. What are the rights of adopted children to inherit from their adoptive parents? Do adopted children retain any rights to inherit from their biological parents?
INHERITANCE RIGHTS FROM ADOPTIVE PARENTS
Generally, “[a]n adopted individual is the child of his or her adoptive parent or parents and not of his or her natural parents.” MCL 700.2114(2). “An individual is considered to be adopted… when a court of competent jurisdiction enters an interlocutory decree of adoption that is not vacated or reversed.” Id. “The permanent termination of parental rights of a minor child by an order of a court of competent jurisdiction; by a release for purposes of adoption given by the parent, but not a guardian, to the family independence agency or a licensed child placement agency, or before a probate or juvenile court; or by any other process recognized by the law governing the parent-child status at the time of termination, excepting termination by emancipation or death, ends kinship between the parent whose rights are so terminated and the child for purposes of intestate succession by that parent from or through that child.” MCL 700.2114(3).
An adopted child is considered to be the legal heir of his or her adoptive parents. If the adoptive parents die without a will, then their adoptive children would be treated like their biological children for the purposes of intestate succession. An adopted child would be entitled to the same equal share that a biological child would be entitled to receive. However, that child must be legally adopted to qualify as a legal heir. An adoptive child “does NOT include an individual who is only a stepchild, a foster child, or a grandchild or more remote descendant” and hat was NOT legally adopted through a court order.
Of course, adoptive parents can also create a last will and testament (they would be considered to have died “testate”) and provide for their adoptive children. If adoptive parents create a testamentary provision indicating that all people in a specific class of people, then adopted children would be included in that group of people in the same category or level of rights, such as heirs of a deceased person who are related by the same degree. For example, if a will stipulates that all children of the deceased parent are entitled to an equal share, the adopted child is included whether or not he or she is specifically named. A will can cover all children in equal shares in a general class, or it can name specific children or any other people individually that are entitled to inherit.
If adoptive parents do leave a will but they fail to provide for a child that was adopted AFTER the execution of the will, then the omitted after-adopted child receives a share of the estate in one of the following:
- “If the testator had no child living when he or she executed the will, an omitted… after-adopted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will.” (MCL 700.2302(1)(a)) OR;
- “If the testator had 1 or more children living when he or she executed the will, and the will devised property or an interest in property to 1 or more of the then-living children, an omitted… after-adopted child is entitled to share in the testator’s estate subject to all of the following:”
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- “The portion of the testator’s estate in which the omitted after-born or after-adopted child is entitled to share is limited to devises made to the testator’s then-living children under the will.” (MCL 700.2302(1)(b)(i)) AND;
- “The omitted… after-adopted child is entitled to receive the share of the testator’s estate, as limited in subparagraph (i), that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom devises were made under the will and had given an equal share of the estate to each child.” (MCL 700.2302(1)(b)(ii)) AND;
- “To the extent feasible, the interest granted an omitted… after-adopted child under this section must be of the same character, whether equitable or legal, present or future, as that devised to the testator’s then-living children under the will.” (MCL 700.2302(1)(b)(iii)) AND;
- “In satisfying a share provided by this subdivision, devises to the testator’s children who were living when the will was executed abate ratably. In abating the devises of the then-living children, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.” (MCL 700.2302(1)(b)(iv)).
However, the rules regarding omitted after-adopted children in an adoptive parent’s will do not apply to any of the following situations:
- Adopted Child Was Intentionally Omitted: If it appears from the will that the omission was intentional, then the adopted child is not entitled to inherit. MCL 700.2302(2)(a). For example, the will may specifically state that a particular child is knowingly and intentionally excluded. A testator creating a will has no obligation to leave a gift or bequest to a child, whether biological or adopted. There are no rules preventing a testator from deliberately disinheriting his or her children.
- Adopted Child Was Provided For By Alternate Means: An after-adopted child is not considered accidentally omitted if “[t]he testator provided for the omitted… after-adopted child by transfer outside the will and the intent that the transfer be a substitute for a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.” MCL 700.2302(2)(b).
INHERITANCE RIGHTS FROM BIOLOGICAL PARENTS
If a court of competent jurisdiction entered an order terminating parental rights to biological parents and a decree of adoption that is not vacated or reversed, then the adopted individual is no longer considered the child of the biological parents for the purpose of intestate succession. MCL 700.2114(2). An adopted child has no right to inherit from biological parents if they die without a last will or testament. If a biological parent leaves a will that leaves the estate in equal shares to “all of his or her children”, the child adopted by another family would not be considered a part of that class of individuals.
However, there is nothing that stops a biological parent from specifically naming an individual in his or her will to inherit, even if that is to a child to whom parental rights were terminated to. There is no requirement that someone has to leave their estate to legal heirs only. A person could leave gifts and bequests to friends, neighbors, charities or any other person whatsoever. An end to the legal relationship does not prevent a biological parent from providing for biological children or their descendants in his or her last will and testament.
EXCEPTION: SPECIAL RULES FOR STEPPARENT ADOPTIONS
“[A]doption of a child by the spouse of either natural parent has no effect on either the relationship between the child and that natural parent or the right of the child or a descendant of the child to inherit from or through the other natural parent.” MCL 700.2114(2). Even if the rights of the other parent are terminated through stepparent adoption proceedings, the adopted child may still inherit via intestate succession through the parent to which parental rights were terminated.
However, this right to inherit is not unconditional. “Inheritance from or through a child by either natural parent or his or her kindred is precluded unless that natural parent has openly treated the child as his or hers, and has not refused to support the child.” MCL 700.2114(4). If the natural parent refuses to have a relationship or provide any support for his biological child, then the link may be severed for purposes of intestate succession. Nevertheless, a natural parent could still leave a gift or bequest to that child in his or her last will and testament by name to ensure that they receive some kind of legacy.
PROPER ESTATE PLANNING CAN HELP PREVENT UNINTENDED CONSEQUENCES FOR ADOPTIVE FAMILIES
A skilled probate lawyer can help draft the appropriate estate planning documents to ensure your wishes are carried out and your intentions regarding all adoptive and biological children are considered. If you or a loved one have any further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
