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Can I make a claim as an adopted or step child?

Updated: May 25

Adopted children

An adoption ends the legal relationship between a birth parent and child. As a general rule, a child that has been adopted cannot make a claim on their birth parent’s estate. However, there are some exceptions to this rule. This includes where the adopted child continued a relationship with the deceased birth parent, relied on the deceased birth parent for financial support or where the adoption occurred several years after the birth of the adopted child.


Of course, this does not mean that a birth parent cannot make a biological child that has been adopted a beneficiary in their will.


An adopted child is considered to have the same rights as any natural children of their adopted parent, this includes family provision rights. This is the case whether or not the deceased adoptive parent had a Will.


Stepchildren

The law varies by State in terms of a stepchild’s eligibility to make a family provision claim.


Despite the diversity of legislation in different states, generally if the stepchild was being maintained wholly or partially by the deceased prior to the deceased’s death or otherwise significantly contributed to the maintenance or upkeep of the deceased’s property, the stepchild would be eligible to make a family provision claim.


The general status of the stepchild depends on a number of factors including the continued marriage between the stepchild’s natural parent and the stepparent. In so far that the family provision legislation stipulates, if the stepparent dies prior to the natural parent, the status of the applicant in a family provision claim will be decided at the time of the deceased’s death.


If the marriage of the stepparent and the natural parent breaks down or the natural parent dies prior to the stepparent, the relationship between the step-child and the parent may cease and therefore the stepchild may not be able to make a family provision claim out of the estate of the deceased step-parent.


Special care is required when drafting a will where stepchildren are involved. In Warton v Yeo [2014] NSWSC 494, the testator drafted his will in a way that distinguished between his sister’s natural child and her stepchildren.


Upon the testator’s death, the stepchildren brought a family provision action against the estate of the deceased claiming that they were “children” of the sister and hence beneficiaries to the testator’s estate. In this case, the testator’s intentional wording of the will, distinguishing between “child” and “stepchildren”, was held to convey the intention of the testator. Therefore, on a factual basis the drafting of the will could clarify the intention of the will by distinguishing between a stepchild and a child.


Conclusion

Accordingly, it is crucial during the estate planning process to consider allocating adequate provision to an eligible stepchild or adopted child. In blended families if adequate provision has not been considered for a stepchild or an adopted child who is eligible to make a claim, the court has the discretion to make provision for the stepchild or adopted child.


Want to learn more? Ready to talk to a lawyer? Get in touch with us.




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