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Friday, July 27, 2018

How Are Adopted and Foster Children, Children Born Out-of-Wedlock, and Posthumously-Conceived Children Treated in Wills?

No two families are the same. Whether you currently have no children but are planning to start a family, or whether you have multiple children from different relationships, your family is as unique as you are. All parents want to make sure their children are cared for when they die, and parents of children who are not born out of a marital relationship may have questions about how and whether their children will be treated under their will.

Children From Married Parents

The law presumes that the child of a marriage is the natural child of the parties to the marriage. When it comes to posthumously-born children of marriage, there is a rebuttable presumption that the child is the child of the deceased husband if the child is born within 280 days (roughly 9.5 months) of the husband’s death.

Children Born Out-of-Wedlock

A child born out of wedlock generally cannot inherit from their biological father unless one of three situations is present: the father subsequently married the biological mother; the father held the child out as his own and either lived with or provided support to the child; paternity is proven either during the father’s life or after the father’s life. Further, a posthumously-conceived child, such as by fertility treatments, is generally not recognized in Illinois as a child of the deceased parent for inheritance purposes.

Adopted Children

The law recognizes that a reference in a will to “child” includes an adopted child. Adopted children are treated just like biological children under wills, for inheritance purposes. Because adoption severs the legal connection between an adopted child’s biological parents and the child and creates a new legal connection between the child and their adoptive parents, once adopted the child generally has no inheritance rights from their biological parents. The exception to this is when a stepparent adopts a stepchild. In this situation, the child gains full inheritance rights from the adopting stepparent and retains their inheritance rights from both of their biological parents.

Foster Parents and Non-Adopting Stepparents

Generally, a child has no inheritance rights from a foster parent or a non-adopting stepparent. As described above with stepparents, however, a child may gain inheritance rights from a foster parent when the foster parent adopts the child and treats the child as their own. Further, if a foster parent or stepparent is able to demonstrate that they had a strong relationship with the child that started when the child was young, and can establish that a legal barrier prevented them from adopting the child, a court may find that the child has inheritance rights from the foster parent or stepparent under the doctrine of equitable adoption. In these situations, the effect of the equitable adoption is that the child can inherit both from the equitable adoptive parent as well as their child’s biological parents.

Need Help Making a Will?

Every parent wants to make sure their child is provided for. Families come in all shapes and sizes, and the experienced attorneys at M&A Law Firm, PC, can help you make sure your estate will care for your children after you die. Contact M&A Law Firm, PC, today to learn more and discuss your options.


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