Inheritance Rights of Adopted Children

By Nikki Marie Oliveira

There’s a “new” law on the books that affects adopted children.  In 1958, G.L. ch. 210 § 8 (“Section 8”) was enacted, which reversed the previous presumption that adopted descendants were not legal heirs and had no right to inherit.  The law inferred that it would be applicable going forward.  In 2009, Section 8 was amended to make it retroactive for all wills and trusts, regardless of when executed.  The legislative intent of retroactivity was supported by fairness and equal treatment for all children, whether adopted or biological.  It brought legally adopted children to a level playing field with biological children regarding inheritance rights.

Fast-forward to Tuesday, August 28, 2012, when the Massachusetts Supreme Judicial Court determined that the 2009 amendment to Section 8 was unconstitutional in BIRD ANDERSON vs. BNY MELLON.  Although the amendment was enacted with positive public policy considerations in mind, its application was not lawful.  Therefore, Section 8 only applies to wills and trust instruments executed after 1958.

Prior to 1958, any estate planning attorney worth a grain of salt would have advised clients that adopted descendants would not automatically receive a share.  Post-1958, a new generation of estate planning attorneys advised their clients of the change in the law.  Accordingly, some adopted descendants were often provided for separately, such as the situation in BIRD ANDERSON vs. BNY MELLON.  The 2009 amendment may have thrown a wrench into some plans.

So, what does this mean?  If your plan was executed before 1958 and you want to ensure your adopted and biological children are treated equally, then it is a good idea to have your estate plan reviewed by an experienced attorney in the field.

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