THE RIGHT OF AN ADOPTED CHILD TO INHERIT FROM THE NATURAL PARENTS

January 30, 2013 § Leave a comment

Consider this scenario:

Father and Mother One have a daughter together, whom we will call Daughter One. Mother One dies and Father is remarried to Mother Two. Father and Mother Two have a daughter together, whom we will call Daughter Two. Soon after Daughter Two’s birth, Father and Mother Two are divorced. Mother Two remarries, and her new husband, with Father’s consent, adopts Daughter Two. Father never remarries, has no more children, and dies intestate. Who are his heirs?

If you answered both Daughter One and Daughter Two, you are correct.

MCA 93-17-13 specifies that ” … the natural parents and natural kindred of the child shall not inherit by or through the child, except as to a natural parent who is the spouse of the adopting parent, and all parental rights of the natural parent, or parents, shall be terminated except as to a natural parent who is the spouse of the adopting parent.” Nothing in the statute precludes the adopted child from inheriting from the natural parents.

In Alack v. Phelps, 230 So.2d 789, 793 (Miss. 1970), the Mississippi Supreme Court held:

While the effect of a final decree of adoption is that the natural parent or parents will not inherit by or through the child, and all parental rights are terminated, Mississippi’s adoption law does not state in any shape, form or fashion that the right of the child to inherit from its natural parents is terminated. We think the intent of the legislature is clear; they intended for the child to continue to inherit from his or her natural parents.

2 C.J.S. Adoption of Children s 63(c) page 454 (1936) succinctly states the applicable law in this way:

‘In the absence of a statute to the contrary, although the child inherits from the adoptive parent, he still inherits from or through his blood relatives, or his natural parents. In view of the tendency of the courts to construe adoption statutes so as to benefit the child, as pointed out above in s 6 of this Title, and also, in in view of the fact that a statute severing the relation between parent and child is in derogation of common law and should for that reason be strictly construed, it has been held that an adoption statute providing that the natural parents shall be divested of all legal rights and obligations with respect to such child should not be construed so as to deprive the child of its right to inherit from or through its natural parents. Under such a statute it cannot be assumed that the adopted child cannot inherit from its natural parent unless there is an express legislative declaration to that effect.’

There is no express legislative declaration to that effect in Mississippi’s adoption law.

This issue was presented to me recently when a lawyer inquired whether an adoption decree that included the express language that the minor child ” … shall inherit from the natural father” would comport with the law. And, if so, would it then mean in the fact scenario set out above that Daughter Two would be included as an heir. Based on my research, I believe it does, whether the express language is included in the adoption decree or not. Don’t you agree that there are some implications here for intestate estates?

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