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Can an adopted child bring an Inheritance Act claim?

Posted on 14th April 2023 in Dispute Resolution

Posted by

Martin Laver

Partner and Solicitor
Can an adopted child bring an Inheritance Act claim?

What is an Inheritance Act claim?

The Inheritance (Provision for Family and Dependants) Act 1975 allows specific people to bring a claim against the estate of someone where they believe the will or the rules on intestacy fails to make reasonable financial provision for them. 

In particular, potential eligible claimants under the Inheritance Act 1975 include:

  • The spouse or civil partner of the deceased;
  • A former spouse or civil partner of the deceased;
  • A child of the deceased;
  • A person treated as a child of the family; and/or
  • A person “maintained” by the deceased.

 

Can an adopted child bring an Inheritance Act claim under their biological parent’s estate?

If an individual is formally adopted, they are treated as the ‘child’ of their adopted parents.

At the point of formal adoption, the biological parent of the child terminates their legal responsibilities towards the child. This includes termination of the automatic right of the child to inherit from their estate under the intestacy rules.  In this case, an adopted child no longer has an automatic right to inherit from their biological parent’s estate under the Inheritance Act as a ‘child of the deceased’.

Technically, the adopted child may be able to claim under their biological parent’s estate on the basis that they were treated as a ‘child of the family’ if they can provide evidence of this relationship, although this type of claim is likely to be rare.

Although an adopted child loses their automatic right to inherit and/or claim against their biological parent’s estate, their parent can still execute a will to include any terms they desire. A biological parent who has terminated their rights over a child is free to provide for that child under the terms of their will despite there being no legal connection between them.

 

Can an adopted child bring an Inheritance Act claim under their adopted parent’s estate?

If an individual is formally adopted prior to the death of their biological parents, by virtue of section 39(2) Adoption Act 1976 they are treated to be the lawful child of their adopted parents for inheritance purposes.

Adopted children have the same rights as biological children when it comes to inheritance from their adopted parents. Whether the deceased died intestate or having executed a will, the position of an adopted child remains the same as that of a biological child.

For example, if a child’s adopted parent passes away and did not execute a will, the intestacy rules will be applied. If the deceased’s estate is to be distributed in accordance with intestacy rules, the adopted child may be entitled to a share of the estate as a ‘child’ of the deceased.

In the event that the deceased’s will, or rules of intestacy, does not provide reasonable financial provision for the adopted child, they may be able to bring a claim under the Inheritance Act as a ‘child of the deceased’.

 

What can I do if I was treated as a child by somebody other than my biological parents but never formally adopted?

If an individual was treated as a child by somebody other than their biological parents but were never formally adopted, they may be able to bring a claim under both estates provided that they could prove that the will or intestacy failed to provide reasonable financial provision.

In this scenario, an individual may bring an Inheritance Act claim under their biological parent’s estate as a ‘child of the deceased’. Additionally, they may bring an Inheritance Act claim under their non-biological parent’s estate as a ‘child of the family’ if they can evidence this relationship.  Such situations are likely to be rare and the Court will take in to account the award from the first claim when considering financial need in the second.

 

How we can help

If you require any advice regarding to the Inheritance Act, then please do not hesitate to get in touch with our experienced team on 01392 207020.

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