Law of Wills, 2016A

4.3 Adopted Children
Much of American inheritance law is based upon English common law. The English placed
a substantial value on blood relations. As a consequence, the common law of England did not give
legal recognition to the adoption by one person of the child of another person. Thus, that child did
not acquire the status of a child and heir of the person attempting to adopt him or her. In England,
the persons having the right to inherit were limited to legitimate children who were heirs by blood.
However, adoption existed as a part of the civil law of Rome and other European countries.
Adoption law, based upon the laws of France and Spain, was initially introduced into American
jurisprudence by the states of Texas and Louisiana. Eventually, several New England states enacted
adoption statutes. One of the first states to include adoption as a part of its common law was
Massachusetts. The requirements of Massachusetts adoption procedures were codified in the Mass.
Stat. of 1851. 17 The push to recognize adoptions in America stemmed from the need to protect
neglected and abused children. Therefore, the concept of the “best interests of the child” was
developed as a part of American adoption law. 18 Consequently, all of the states in the United States
and the District of Columbia currently have adoption statutes in place.
In the majority of jurisdictions, the adopted child is treated as the legal child of the adopting
parents once the court has entered the final adoption decree. As a result, the adopted child obtains
the right to inherit from the adoptive parents and from the adoptive parents’ relatives. Generally, the
court decree that finalizes the adoption ends the legal relationship between the birth parents and the
adopted child. Therefore, the adopted child does not retain the right to inherit from or through the
birth parents. 19 However, the adoption by the spouse of a birth parent generally has no effect on the
right of a child to inherit from or through either birth parent.
Since adoption law is statutory and highly localized, adoption laws varies from state to state.
With regards to this legal issue, the states have taken several different approaches. Some states like
Alaska 20 , Idaho 21 , Illinois 22 and Maine 23 have enacted statutes that permit the adopted child to inherit
from his or her birth parents as long as that right is reserved in the adoption decree. Texas 24 and a
17
See Ross v. Ross, 129 Mass. 262-263 (1978).
18
Matter of Jarrett, 230 A.D. 2d 513 (N.Y.S. 2d 1997).
19 See e.g., Tenn. Ann. Code § 36-1-121.
20 Alaska Stat. §§ 25.23.130 (“A final decree of adoption relieves the birth parents of the adopted persons of all parental
rights and responsibilities, and, except as provided below, terminates all legal relationships between the adopted person
and the birth parents and other relatives of the adopted person, so that the adopted person thereafter is a stranger to the
former relatives for all purposes including inheritance, unless the decree of adoption specifically provided for
continuation of inheritance rights.”).
21 Idaho Code § 16-1509 (“Unless the decree of adoption otherwise provides, the natural parents of an adopted person
are relieved of all parental duties toward the adopted person, including the right of inheritance unless specifically
provided by will.”)
22 Ill. Cons. Stat. Tit. 755, § 5/2-4(b), (d) (“***”For purposes of inheritance from or through a natural parent, an adopted
child is not a child of a natural parent, nor is the child a descendant of a natural parent or of any lineal or collateral
kindred of a natural parent, unless ***The contrary intent is demonstrated by the terms of the instrument by clear and
convincing evidence.”).
23 Maine Ann. Stat. Tit. 18-A, §§ 9-105; 2-109 (“An adopted person retains the right to inherit from the adopted person’s
birth parents if the adoption decree so provides, as specified in § 2-109. If a natural parent wishes an adopted child to
inherit from the natural parents and their respective kin, the adoption decree must provide for that status.”).
24 Texas Prob. Code § 40; Fam. Code § 162.507 (“The natural parents of an adopted child shall not inherit form or
through said child, but said child shall inherit from and through its natural parents.”) Texas Prob. Code § 40 (“An
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