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Probate Treatment of Adoption

Edited by pricelawfirm

With the ever-evolving concept of the “modern family”, many families choose adoption as a method of expanding their family and continuing their legacy. The California Probate Code has a series of laws that address the treatment of adopted children during probate proceedings. The laws address the relationship of parent and child for purposes of intestate succession when a child is adopted.

Establishing the Existence of Parent-Child Relationship

Under Probate Code §6450, the relationship of parent and child only exists for the purposes of intestate succession (if there was no will) if that child is (1) a natural child, or (2) an adopted child. The most common scenario is that a child may inherit through a deceased parent, however, it is also possible for a parent to inherit from a deceased child. (Probate Code §6402.)

The general rule is that when the natural child of the natural parent is adopted by the adopting parent, then the relationship of parent and child is terminated between the natural child and the natural parent. (Probate Code §6451(a).) 

For Example, Harry and Winona have a child, Carrie. Harry and Winona consent to an adoption of Carrie by the adoptive parents, Abraham and Bertha. The relationship of parent and child between either Harry or Winona and Carrie is severed. Thus, Carrie would not inherit through intestate succession from either Harry or Winona. Likewise, Harry and Winona would not inherit through intestate succession from Carrie.

Probate Code § 6450(b) specifies that a relationship of a parent-child exists for the purpose of intestate succession by establishing that a relationship of parent and child exists between an adopted person and the person’s adopting parent or parent. This can be established by providing an Order of Adoption or an updated Certificate of Birth reflecting the adoptive parents. For Example, in our example above, Carrie was adopted by Abraham and Bertha. The parent and child relationship exists for intestate succession purposes between Carrie, as the child, and Abraham and Bertha, as the parents.

When an Adoption Doesn’t Severe the Parent-Child Relationship

However, there is an exception to the general rule that adoption severs the Parent-Child Relationship with the natural parents. There are special circumstances in which an adopted child can inherit from the natural parent(s). These special circumstances are contained in California Probate Code § 6451 and both of the following requirements must be satisfied:

(1) The natural parent and the adopted person lived together at any time as parent and child, or the natural parent was married to or cohabitating with the other natural parent at the time the person was conceived and died before the persons birth (California Probate Code § 6451(a)(1)); and

(2) The adoption was by the spouse of either of the natural parents or after the death of either of the natural parents (California Probate Code § 6451(a)(2).)

For example, married couple Fred and Martha have a natural child, Billy, and they live together until Billy is 3 years old. Fred and Martha later divorce, and then Martha marries John. John, with Fred’s consent, adopts Billy. Because Billy lived with Fred as parent and child, and because Billy was adopted by John who was the spouse of Martha, both of the requirements are satisfied and the parent and child relationship between Fred and Billy was not severed by the adoption. Thus, Billy can still inherit from Fred, and Fred can still inherit from Billy. Because John adopted Billy, the parent child relationship also exists between John and Billy. And since Martha is the natural parent of Billy, Billy can inherit from Martha and Martha can inherit from Billy. Billy has three parents for the purposes of intestate succession!

In sum, the treatment of adopted children under the California Probate Code can be complex. Although typically an adoption severs the parent and child relationship between a natural parent and his or her child, it is possible for the parent and child relationship to continue with the natural parent even if the natural child is adopted by a new adopting parent.

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