Adoption Support

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Monday, June 06, 2005

Child Given up for Adoption Can Still be an Heir

Child Given up for Adoption Can Still be an Heir

I’m an avid reader of yours. I’d like to know about adoptive children being heirs to their biological parents’ estates. The child was given up at birth and was legally adopted through an agency. He has not had contact with his birth mother for over 50 years, but has now located her. Can he still legally claim rights to her estate when she dies? -- A.D.
Texas law is very clear on this point: a child who is given up for adoption is still entitled to inherit from the biological parents. This is true even though the biological parents meant to completely remove the child from their lives.

Texas law is also very clear on a different point: you may always select your heirs, and you may always exclude anyone from being your heir.

Can we reconcile these two viewpoints? Yes. The difference is action on the birth mother’s part. Only if she fails to make a Will or other plan can this man make a claim against her estate. He is entitled to make a claim under the laws of intestacy. If she dies without a Will, he can share equally in the estate. On the other hand, if she has a Will identifying her heirs and disposing of her entire estate, she is not intestate so he has no claim (unless she wants him to).

An excellent illustration is found in Texas case law. A son named Russell was born to John and Mildred in 1945. They divorced in 1954. Russell went with his mother Mildred, who eventually remarried. John gave up his parental rights, and Mildred’s new husband adopted Russell. John also remarried and started a second family.
John died in 1984, never having given Russell a second thought. He also never gave a thought to making a Will, and thus died intestate. His second wife, and the daughter from that marriage, went to court to probate his estate. They did not mention to the court that Russell had ever existed.

In 1987 Russell discovered that John had died. It seems John had acquired a tidy sum of money, so Russell appeared to claim his share. The trial court applied the law that a child given up for adoption is still entitled to inherit. Russell was awarded $250,000. John’s second family disagreed, and appealed the case.

The court of appeals upheld the trial court’s ruling. Russell inherited from his birth father even though he had been given up for adoption 30 years before John died. If John had made a Will, he could have left his fortune to his second family. So the answer to your question is: yes, a child given up for adoption can still inherit, but only if the birth parent takes no action to prevent it.