How Does Adoption Change Your Rights to Your Biological Parent's Estate?

by Troy L Nussbaum on Mar. 14, 2019

Estate Estate  Wills & Probate 

Summary: Adoption changes your rights to inherit from your biological parent's Estate if they pass intestate. This article summarizes Mr. Nussbaum's attempt to circumvent that rule.

The State of Maryland has made it very clear what an adopted child's rights are to their biological parent's Estate, simply put, they have none. There are certain caveats, such as an individual who is adopted by their step-parent and remains a child of their biological parents. Section 1-207(a) of the Maryland Estates & Trusts Annotated Code, titled "Rights of adopted children” states: “(a) An adopted child shall be treated as a natural child of his adopting parent or parents. On adoption, a child no longer shall be considered a child of either natural parent, except that upon adoption by the spouse of a natural parent, the child shall still be considered the child of that natural parent.

In a recent case Henault & Sysko, Chartered was involved in, we explored the constraints of this rule and made some interesting findings and ever more intriguing arguments on behalf of our client. In this matter, our client was the child of unwed parents who had never met his biological father until our client passed the age of forty. The father was never made aware of the child's birth or his subsequent adoption to a family out of the State of Maryland. Needless to say it was a surprise when our client reached out to his biological father, but none-the-less, eventually they hit it off and created a father-son relationship.

On the passing of the father, his children (not including our client) made every attempt to disavow our client. Their position was that he was adopted and therefore, he was no longer a child of the deceased for the purposes of his intestate Estate distribution. The client searched and hired Henault & Sysko, Chartered, and we immediately got to work. We found law to support our argument that our client was indeed still a child of the decedent for the purposes of Estate distribution.

In Maryland, if a child is born to unwed parents, he is only considered to be the child of the Mother unless the Father engages in some proactive action to lay claim to his child (called legitimization), or the court deem the individual the Father of child. Specifically, the proactive action(s) the father would need to take is one or more of: acknowledging himself, in writing, to be the father; openly and notoriously recognized the child to be his child; or subsequently married the biological mother and acknowledged himself to be the father (See Section 1-208 of the Maryland Estates & Trusts Annotated Code). We had no facts to believe that the court deemed the decedent to be the father of our client, nor that the father had legitimized our client prior to his adoption. Therefore we argued that prior to our client's adoption, he was not considered a child of the decedent.

The next step in our analysis was to better understand a parent's constitutional rights. In the USA and Maryland we constitutionally recognize a parent's fundamental due process rights to raise their child. In re Adoption/Guardianship No. 6Z000045, 372 Md. 104, 115, 812 A.2d 271, 277 (2002) (Quoting Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 57 (2000)). That means that an individual cannot lose their rights to be a parent of their child without certain due process. Specifically the due process we argued was notice. If an individual is 1) not made aware they have a child; and 2) not made aware the child is being adopted, that individual inherently cannot grant permission for that adoption or waive their right to protest that adoption.

This was our conclusion - the decedent, at the time of the adoption could not have been the legally recognized father of our client. The decedent was unaware of the birth of our client and was never made aware of the adoption. Moreover, he had never legitimized the child prior to the adoption and therefore the child could not be legally recognized as his. This was a starting ground - from here we worked on an additional theory and staunchly argued that the decedent, at the time of adoption, had not legitimized the child and therefore could not yet have been the father, and even if he was deemed to be the father, our client's adoption violated his fundamental due process as required by the constitution, and therefore the adoption could not be valid against the decedent to waive his paternal rights!

Looking back to the facts, we then proceeded to argue that the decedent did eventually legitimize our client and that our client was again adopted by his biological father through the theory of Equitable Adoption. As our client and his father began a relationship prior to his father's death, we knew, and we had witnesses that his father had legitimized him through written documents and notoriously recognizing him to his friends and family.

With these arguments we were able to continue pushing through the Orphan's Court, and subsequently to the Circuit Court on appeal. Eventually, the case settled in Circuit Court and we had an extremely satisfied client!

At Henault & Sysko, Chartered, we are determined to zealously represent our clients. Although each case will likely not require such unique arguments as represented above, we none-the-less always put our best foot forward and push for the absolute best outcome for our clients!

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