Heirship vs. Adoption
Question: Does a child which was given up for adoption have any rights to an estate? An Heirship affidavit would normally state "no other children living or deceased", however there was another child which was given up at birth. How should the Affidavit reflect this birth?
Answer: In Texas, a child given up for adoption does not lose the right to inherit from his or her natural, biological parents. The problem arises when a biological parent gives an infant up for adoption and soon knows nothing about the child or the child's whereabouts, especially in later years. If the biological parent then dies intestate, the long-ago adopted child nonetheless becomes an heir. The adopted child at that point is usually unknown and perhaps should remain unknown. This is awkward from both a family and title perspective.
An adopted child inherits from the adoptive parents the same as a natural child and the adoptive parents can inherit from an adopted child; the law makes no distinction between natural and adopted. However, although the child can inherit from them, the biological parents who gave the child up for adoption cannot inherit from the child according to Section 40 of the Probate Code.
An exception to this rule of inheritance is found in Section 162.507 of the Family Code, where the adopted person is an adult when adopted. The adopted adult and adoptive parents have the same rights as a natural child or parents, i.e., they can inherit from each other. But 162.507(c) provides that a person adopted as an adult can no longer inherit from his or her biological parents. So the age at which a person is adopted, i.e., child or adult, affects the right to inherit from a biological parent.
Section 40 of the Probate Code makes express reference to this Family Code exception and provides that "nothing herein shall prevent any parent by adoption from disposing of his property by will according to law." The same testamentary right applies to biological parents whose parental rights are terminated; they can will their property to whomever they desire. A properly drafted and duly executed will solves this problem
Another exception appears in Section 161.206(b) of the Family Code in the order terminating parental rights, which is required before a child is eligible for adoption. The court enters an order in such instances terminating the parental rights, "except that the child retains the right to inherit from and through the parent unless the court otherwise provides" (emphasis added). So, for good cause the court can also terminate the child's right to inherit from his or her biological parents.
Your question also mentions an heirship affidavit, and whether a child given up at birth should be disclosed. Since the affidavit is a sworn statement, I must answer that the child who was born yet given up for adoption must be accounted for. If some of the above exceptions mentioned above apply, you may cite them. If you no longer know the adopted child's whereabouts, or if the child is still a minor, you may have a considerable problem.
For what it is worth, Section 42(2) of the Probate Code addresses the affidavit of heirship situation. If the affidavit fails to mention a child who is not a "presumed child" of the decedent or not entitled to treatment as a child under a decree from the court, and if the purchaser is not on notice as to a child's claim, then a good faith purchaser of real estate for value will be protected from such a claim. Whether a child who has been adopted out is a "presumed child" of a decedent may well depend upon external facts and circumstances, including questionable paternity. This discussion is by no means exhaustive on the subject. Here is another example where advice from a competent lawyer is indispensable. One final reminder, if you have given up a child for adoption and do not want the child to inherit from you, then do not die intestate. Dispose of your property according to your own testamentary wishes.
Answer: In Texas, a child given up for adoption does not lose the right to inherit from his or her natural, biological parents. The problem arises when a biological parent gives an infant up for adoption and soon knows nothing about the child or the child's whereabouts, especially in later years. If the biological parent then dies intestate, the long-ago adopted child nonetheless becomes an heir. The adopted child at that point is usually unknown and perhaps should remain unknown. This is awkward from both a family and title perspective.
An adopted child inherits from the adoptive parents the same as a natural child and the adoptive parents can inherit from an adopted child; the law makes no distinction between natural and adopted. However, although the child can inherit from them, the biological parents who gave the child up for adoption cannot inherit from the child according to Section 40 of the Probate Code.
An exception to this rule of inheritance is found in Section 162.507 of the Family Code, where the adopted person is an adult when adopted. The adopted adult and adoptive parents have the same rights as a natural child or parents, i.e., they can inherit from each other. But 162.507(c) provides that a person adopted as an adult can no longer inherit from his or her biological parents. So the age at which a person is adopted, i.e., child or adult, affects the right to inherit from a biological parent.
Section 40 of the Probate Code makes express reference to this Family Code exception and provides that "nothing herein shall prevent any parent by adoption from disposing of his property by will according to law." The same testamentary right applies to biological parents whose parental rights are terminated; they can will their property to whomever they desire. A properly drafted and duly executed will solves this problem
Another exception appears in Section 161.206(b) of the Family Code in the order terminating parental rights, which is required before a child is eligible for adoption. The court enters an order in such instances terminating the parental rights, "except that the child retains the right to inherit from and through the parent unless the court otherwise provides" (emphasis added). So, for good cause the court can also terminate the child's right to inherit from his or her biological parents.
Your question also mentions an heirship affidavit, and whether a child given up at birth should be disclosed. Since the affidavit is a sworn statement, I must answer that the child who was born yet given up for adoption must be accounted for. If some of the above exceptions mentioned above apply, you may cite them. If you no longer know the adopted child's whereabouts, or if the child is still a minor, you may have a considerable problem.
For what it is worth, Section 42(2) of the Probate Code addresses the affidavit of heirship situation. If the affidavit fails to mention a child who is not a "presumed child" of the decedent or not entitled to treatment as a child under a decree from the court, and if the purchaser is not on notice as to a child's claim, then a good faith purchaser of real estate for value will be protected from such a claim. Whether a child who has been adopted out is a "presumed child" of a decedent may well depend upon external facts and circumstances, including questionable paternity. This discussion is by no means exhaustive on the subject. Here is another example where advice from a competent lawyer is indispensable. One final reminder, if you have given up a child for adoption and do not want the child to inherit from you, then do not die intestate. Dispose of your property according to your own testamentary wishes.
posted by TalkingTitle at 11:16 AM
0 comments
