Confused7 wrote: Ahyis wrote: Confused7 wrote:
Sorry to bump but I'm still really confused about this, and Themis has not been helpful.
Confused7 wrote:More NY family law stuff...I'm really confused as to how adopted out kids can get their share in wills. I thought the rule was that they had to be specifically mentioned in the biological parent's will to get stuff. But there's also that test with the factors (if decedent died after 8/31/1987, if decedent was the adopted child's grandparent or descendent of a grandparent, and if the adopted parent is married to the child's biological parent). When do we apply each? I asked Themis but they weren't very clear.
This confused the hell out of me too until I think I figured it out:
If you are ADOPTED OUT and there's no ANTI-LAPSE and you AREN'T MENTIONED - You can't take inheritance or a "to my children" class gift UNLESS that 3 part 1987 test allows you too
If you are ADOPTED OUT but there is AN ANTI-LAPSE STATUTE
at work and you ARE SPECIFICALLY MENTIONED - You CAN inherit through ANTI-LAPSE
Thanks for your response! So you think the deciding factor is if there's an anti-lapse statute? I'm not so sure. :/ In the last essay on the simulated NY day (the one about a decedent named Thea who had given her kid Chip up for adoption), one sub-answer states that NY does have an anti-lapse statute. But the sub-answer that addressed whether Chip could get anything from Thea's will (there was a provision that said "to all my children) still went into the 1987 analysis...
I might be wrong, but here's what I think the rule is:
Confused7 wrote: I thought the rule was that they had to be specifically mentioned in the biological parent's will to get stuff.
This rule applies when the adopted out child is inheriting directly from
the biological parent that gave them up for adoption. That parent would have to specifically mention the child by name in the will in order for the child to inherit. If the parent says something like "to my heirs or issue" the child won't inherit. [EDIT: exception to this if "i) The will (or lifetime testamentary instrument) is executed after August 31, 1986; ii) The will includes a class gift (e.g., “next of kin”, “children”, “issue”); iii) The person who adopted the child is (a) married to the child’s natural parent, (b) the child’s natural grandparent, or (c) a descendent of the child’s natural grandparent; iv) The testator is the child’s natural grandparent or a descendent of the natural grandparent; and v) The will does not express a contrary intention."] Same goes if the parent dies intestate.
Confused7 wrote: But there's also that test with the factors (if decedent died after 8/31/1987, if decedent was the adopted child's grandparent or descendent of a grandparent, and if the adopted parent is married to the child's biological parent). When do we apply each? I asked Themis but they weren't very clear.
This rule applies when the adopted child stands to inherit through
the biological parent who gave them up for adoption. For example, assume that the biological dad gave kid up for adoption. Biological dad dies. Biological dad's brother dies intestate. Here the decedent is a descendant of the child's biological grandfather. The child would inherit from the biological uncle so long as the uncle died after 8/31/1987 and the child's adopted parent is married to the child's biological mother. If the child was given up for adoption by both parents and adopted by two strangers, then the child would not inherit from his biological uncle.