There are many reasons a child will be given up for adoption, and the hope is always that the child will receive a loving, caring home with a family that adores them. Some children, even with the best possible upbringing by their adoptive family, will always wonder about their birth family, and many will go seeking them to find out more about their roots and the reason they were adopted.
Some of these children will reunite with their birth families, and although they remain loyal to their adoptive families, they may enjoy being able to get to know relatives and potentially even siblings that they were previously unaware of. One complication of this reunion, however, is that of inheritance.
Inability to inherit from birth family
Under New Mexico law, when a child is adopted, all rights to their birth parents’ estate are rescinded. This has been demonstrated in many cases, including the Estate of Shehady [1] and the Estate of Holt [2]. The adopted child’s legal ties to their birth family are severed by the legally arranged adoption. Instead, they assume the same rights as a natural child of their adoptive family.
This means that when an individual who was adopted as a child later reconnects with their birth family, even if they become very close and provide the same levels of love, support and care for their birth relatives as they would have done had they not been adopted, unless specified within their last will and testament, they have no legal claim on any inheritance after the birth family passes away.
For some people, particularly those with siblings who were not adopted, this realization can be very hard to accept and can feel like a second rejection.
Inability to inherit from paternal grandparent after second parent adoption
If a couple divorces or a child’s father passes away and their mother remarries, her new husband may wish to adopt her child. This is known as a stepparent, or second parent, adoption [3]. Second parent adoption offers many benefits, including the ability for the child to assume their mother’s new last name, for both adults to equally share parental responsibility, and to have parental rights for the child in question.
Second parent adoption by a step-parent can only take place with the consent of the birth father or by a finding that the birth father has no parental rights, as this arrangement terminates their relationship with the child. As a result, second parent adoption is usually only appropriate for situations where the birth father agrees, there is no paternal contact, or the birth father has died.
Second parent adoption can simplify situations such as those that arise when the child needs medical assistance and their mother is not present to consent to treatment. One potential drawback of second parent adoption, however, is that a child who is legally adopted by their stepfather loses their right to inherit from their birth father’s parents (their paternal grandparents). [2]
New Mexico law states that adopted children have the same legal position as their adoptive parents’ birth children and therefore stand to inherit from those individuals legally listed as having parental rights and responsibilities, along with their families.
To learn more about second parent adoption and child custody in Santa Fe (https://kufferlaw.com/santa-fe/child-custody/), you should seek out a family law attorney to discuss your specific circumstances.
Inability to inherit if paternity is not established prior to adoption
New Mexico law states that an adopted child may not inherit from their natural father’s estate, even if they are adopted by their maternal grandparents, if paternity was not established prior to the adoption taking place [4]. This means that should the child’s birth mother not list a father’s name on the child’s birth certificate or establish paternity and gain the father’s approval for adoption, there is no further legal remedy for the child in the future.
The importance of a last will and testament
All of these situations illustrate how an adoptive child belongs, by law, to their adoptive family and has no claim on the estate of their birth family. New Mexico’s intestate laws will typically not consider any such claims, even when maternity or paternity can be proved, as the legal process of adoption takes precedence. However, the birth family could still will the adoptee part of their estate voluntarily.
Therefore, the only way in which an adopted child can inherit from their birth family is through their last will and testament. At the Law Office of Dorene A. Kuffer, we can help you understand your rights, whether you are adopted or have reconnected with a family member who was adopted outside of the family. We will take the time to understand your situation and provide tailored advice to support you with estate planning and help you to overcome the complications associated with this complex area of family law.
Resources:
[1] https://law.justia.com/cases/new-mexico/supreme-court/1971/9270-0.html
[2] https://law.justia.com/codes/new-mexico/2021/chapter-45/article-2/part-1/subpart-1/section-45-2-103/
[3] https://law.justia.com/codes/new-mexico/2021/chapter-32a/article-5/section-32a-5-32/#:~:text=Any%20person%20may%20adopt%20his,provisions%20of%20the%20Adoption%20Act.&text=(9)%20when%20adopted%2C%20the,C.
[4] https://law.justia.com/cases/new-mexico/court-of-appeals/1994/14794-2.html