When Adult Adoption Goes Too Far (Relating to Inheritance)
Florida law provides for adopted children to be included in the definition of descendant for purposes of the laws of intestacy. Most documents provide similar language to ensure that adopted children are treated as children for inheritance purposes. By way of example, this language would include a lawfully adopted grandchild as an equal beneficiary of an estate with the following language, “I devise the residue of my estate into separate and equal shares for the benefit of each my grandchildren.” This creates what’s called a “class gift”. The class is determined upon death of the testator (last will and testament) or grantor (trust). Under the law and most agreements, if there are three (3) legitimate grandchildren and one (1) adopted grandchild, the adopted grandchild will receive an equal share, one-fourth (1/4).
The issue presented here is that neither the law nor documents generally provide a limitation on adoption for purposes of class gifts. Should there be age limitations? Timing limitations (such as when the order is entered)? In this regard, we’re really focusing on adult adoption. In the above example, what if one of the children adopted an adult, thereby resulting in the deceased testator (last will and testament) or grantor (trust) having five (5) grandchildren at the time of his death. Each beneficiary now goes from receiving one-fourth (1/4) of the estate to one-fifth (1/5). If the estate is valued at several million dollars, that can be an expensive difference.
This promulgates attorneys to discuss these issues with their clients and pay special attention to drafting. It doesn’t matter what the client wants to do. Our job is to memorialize the client’s wishes. What’s important is that the client is educated and able to make an informed decision.
Here’s a sample adult adoption clause.
Effect of Adoption. A legally adopted child (and any descendants of that child) will be regarded as a descendant of the adopting parent only if the petition for adoption was filed with the court before the child’s eighteenth birthday. If the legal relationship between a parent and child is terminated by a court while the parent is alive, that child and that child’s descendants will not be regarded as descendants of that parent. If a parent dies and the legal relationship with that deceased parent’s child had not been terminated before that parent’s death, the deceased parent’s child and that child’s descendants will continue to be regarded as descendants of the deceased parent even if the child is later adopted by another person.
Barry E. Haimo, Esq.
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