Tuesday, August 28, 2012

Inequality in Inheritance Rights of Adopted Persons

I'm teaching Adoption Law this term, and it's always interesting to cover the history of adoption with the students who tend to have never really considered the legal treatment of adoptees over time.  One issue we talk about is inheritance rights, which in the past excluded adoptees from inheriting from adoptive parents or extended adoptive family unless they were specifically named in a will.  But, I tell the students, that's the bad old days for the most part.  Now, in every jurisdiction, adoptees and biological children are treated equally under inheritance laws.  But, a new case from Massachusetts, reported at Boston.com, reminds us that the effects of the "bad old days" are still felt today:
Adopted children do not have the same rights as biological children to inherit the family fortune under wills written before 1958, the state’s highest court ruled today in a closely watched case.

The ruling grew out of a dispute between Rachel A. Bird Anderson and her adopted brothers, Marten and Matthew Bird, over the meaning of the 1941 will of their great-grandmother, Anna Child Bird, the matriarch of the famous Walpole family who donated Bird Park to the town.

The Supreme Judicial Court said the law in effect when Anna Child Bird wrote the will applies today, not a 1958 law that gave biological and adopted descendents equal inheritance rights, or the 2009 law that made those rights retroactive for all time.

Anna Child Bird’s will “was created by a private person operating in the private sphere, bestowing expectations and interests on her descendants," Justice Margot Botsford wrote for the unanimous court.

“The settled law in this Commonwealth is and has been that one executing a will or trust and distributing property thereby is entitled to rely on the law in effect at the time the instrument was created," wrote Botsford, who called the concept a “bedrock principle" of Massachusetts law.

Before 1958, adopted children were not considered heirs, unless they were specifically named as such in the will.

The Boston Bar Association was one of the legal groups filing “friend of the court” briefs in the case. Lisa C. Goodheart, the association president, said today that the way the court handled the dispute will ease the minds of many families and the estate lawyers who advise them.

“This decision avoids a radical change," Goodheart said. “The long-settled rules of the road and expectations have been reaffirmed with this decision."
So certainty and predictability trumps equal treatment, which is not a terribly surprising conclusion under the law which prizes certainty and predictability.  And, even when the testator's intent is based on discriminatory notions of who counts as family, the law will insist that those biased intentions be carried out.  Sigh.

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