By Terence S. Nunan
Rutter Hobbs & Davidoff IncorporatedAdoption is a subject that receives insufficient attention in estate planning. When a person--whether a child or adult--is adopted, the adoptee may automatically become a beneficiary to a testator’s estate and, therefore, inherit a portion of the estate.
Unlike marriage, adoption is, for most part, irrevocable. For example, if a son of the testator adopts his new wife’s child from a prior marriage, the adopted child will become the testator’s grandchild and a potential heir even if the son later divorces that wife. In the context of estate planning, the key question is whether the adopted person is, and is intended to be, included in the testator’s estate plan.
Often, a person will establish a trust for the benefit of his or her children with eventual distribution to the testator’s grandchildren. A critical issue is whether adopted persons should be included in the class of grandchildren of the testator. In the absence of defining provisions in the will or trust, adopted persons may be included, even if adopted as adults. [See Ehrenclou v. Mac Donald, 117 Cal. App. 4th 364, 12 Cal. Rptr. 3d 411 (2004) in which Rutter Hobbs & Davidoff was trial counsel to one of the prevailing parties where there were multiple adult adoptions.]
The issue is, of course, the actual intention of the testator. Sometimes a person will adopt for non-paternal motives in order to benefit a friend who the testator would probably not consider as his or her grandchild. Carefully drafted documents may limit the class of intended beneficiaries to persons who are adopted below a specific age (such as age 14 or younger) or who have lived with the adopting parent as a minor.
One aspect of California adoptions that deserves special attention is the estate planning consequence of Family Code Section 8612(b). This provision of California law requires that adopting parent(s) promise in writing that they will treat their adopted child as their lawful child. It provides that the adopted child will “…have the same rights as a natural child born to me, including the right to inherit my estate.” This contract may constrain the ability of an adopting parent to later discriminate against the adopted child in favor of natural born children in their estate planning.
As the Ehrenclou decision demonstrates, adoption can create interesting estate planning issues for the adoptive parent(s) as well as their extended family, long after the adoption of the person has occurred. Careful drafting of estate planning documents can make it more certain that wealth will be inherited as the testator actually intended.
About the Author:Terence S. Nunan, a partner at
Rutter Hobbs & Davidoff in Los Angeles, is a specialist in probate, estate planning and trust law. A significant portion of Nunan’s time is spent representing fiduciaries, beneficiaries and creditors in contested probate, trust and conservatorship matters. He also represents executors and trustees in post-death administration proceedings including formal probate proceedings, spousal property petitions, trust proceedings and the preparation and audit of estate tax returns. Nunan has special expertise in estate tax and fiduciary income tax matters and has successfully represented clients in both trial and appellate courts. To contact the author, call (310) 789-1814 or email
tnunan@rutterhobbs.com.
*Note: Publication of this article does not indicate that I
endorse this company; I am merely providing information that may
be of help to the wide range of people who visit the Exploring Adoption
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