In relation to the disposition of an individual’s estate, are adopted or illegitimate children treated the same as natural legitimate children and, if not, how may they inherit?
Adopted children
Adopted children are treated as the legitimate children of an adopter or adopters and of nobody else. Once they have been adopted, they do not have any rights of inheritance from the estate of their biological parents, other than any to which they became entitled prior to adoption.
Before 1 October 2014, only interests to which the child had an unconditional entitlement (‘vested in possession’) would have been preserved. For adoptions made on or after 1 October 2014, an interest of a child in the estate of a deceased biological parent, which is a contingent interest other than one in remainder, will also be preserved. A contingency is a condition that must be fulfilled before the child has an absolute entitlement to the interest. For example, the interest may be contingent on the child attaining the age of 18 years. A contingent interest is in remainder and, therefore, not preserved by the rules introduced in 2014 if it is subject to the interest of another person. An example would be a gift in a will of a deceased’s estate to a person for life and then to the child at 18 years. The child’s interest is contingent on reaching 18 years but is in remainder to the above person’s life interest and, therefore, not preserved by the new rules.
As a testator has complete testamentary freedom over his or her estate, no child has a right to inherit from a parent; however, if a will provides for a legacy to children without expressly naming individuals, adopted children would be entitled to inherit in the same way as biological children.
Illegitimate children
No distinction is made between legitimate and illegitimate children. This rule applies to wills and trusts made on or after 4 April 1988 and to the intestacy rules where the intestate died on or after 4 April 1988.
England & Wales Guide
The England & Wales guide answers the principal questions for Private Clients relating to the law in this jurisdiction.
