Beyond The Will, Client Compass

The Estate Planning Implications of Adoption

January 21, 2021


To best enjoy this post, please be sure to first read A Family History of the Smiths & Alexanders

We welcome the New Year by continuing the saga of the Smith and Alexander families. Like the Smiths and Alexanders, many families are considered “blended,” meaning that adults bring children from previous relationships into a new relationship or new marriage. What does that mean from an estate planning perspective if you have stepchildren for which you wish to provide (or exclude)?

Under M.G.L. c. 190B, § 2-114 of the Massachusetts Uniform Probate Code (“MUPC”), an adopted child and the issue of an adopted child are treated as issue of the adopting parent for inheritance purposes. This means that an adopted child (and issue) will typically be treated in the same manner as the biological children (and issue) of the adopting parent. In addition, it is now standard practice in estate planning documents to include a provision stating that the definition of “issue” includes descendants by blood and descendants by adoption. Thus, if a stepparent has adopted a stepchild and later decides that they wish to disinherit the stepchild, the stepparent’s documents would have to explicitly state that such stepchild was disinherited. Otherwise, the stepchild and his or her issue would be treated in the same manner as the stepparent’s biological children and their issue.

An issue frequently arises, however, where a stepparent has not formally adopted a stepchild.  Massachusetts does not recognize the concept of “equitable adoption,” which could otherwise result in such a stepchild having certain rights without having been legally adopted. Thus, in this type of situation, if a stepparent leaves assets to issue through a will or trust and fails to explicitly state that his or her (non-adopted) stepchild (and descendants) are included in the definition of “issue,” the stepchild is unlikely to be treated in the same manner as the stepparent’s biological children and their issue. If the intention is to benefit stepchildren, the best solution is to specifically define “issue” to include descendants by blood, adoption, or stepchildren.

So how does this apply to the Smiths and Alexanders?  We know that Johnny and Moira were never married. However, it was clear from their initial meeting with Attorney Mullens that they intended to treat all of their children equally. Thus, Attorney Mullens accurately defined children in the estate planning documents to include Randall, Twyla, Alexis, and David. Presumably, the documents defined the “issue” of Johnny and Moira in a manner that also included the descendants of Randall, Twyla, Alexis, and David to ensure that each of them (and their descendants) would have been treated in the same manner. In light of the fact that the term “children” was defined to include Randall, Twyla, Alexis, and David, it seems unlikely that Stevie would have any rights to Johnny’s assets. However, given the fact that Johnny was unaware of Stevie’s existence at the time he executed his documents, it is possible that she would have a claim against Johnny’s estate.

In the event that Johnny and Moira had married, they still would have had to include specific provisions to ensure that all four children (and the children’s descendants) were treated equally unless Johnny and Moira each legally adopted each other’s children.

With respect to Moira’s decision to modify her estate plan to exclude Twyla and Randall as beneficiaries, Twyla and Randall were never adopted by Moira and thus, under intestacy law, were not required to be treated in the same manner as Moira’s biological children.  Arguably, Moira would not need to make any reference to expressly exclude Twyla and Randall, nor would she need to modify the standard definitions of children or issue to ensure that Twyla and Randall would not be included.  That being said, in an instance such as this where Johnny’s documents specifically provided for all four children and Moira subsequently modified her documents to exclude Twyla and Randall, it would likely be in Moira’s best interest to specifically state that she intentionally excluded Twyla, Randall, and their issue.

When it comes to blended families, the best way to ensure that your intentions are reflected in your estate planning documents is to meet with an experienced estate planning attorney.  Further, it is important to update your attorney as circumstances change (such as marriage, children, etc.) so that your attorney can properly update your estate planning documents.

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