This article discusses the basic rules regarding the inheritance rights of adopted children, foster children and stepchildren as heirs under the California Probate Code. That is, when such persons may inherit from a deceased adoptive parent, step-parent, and foster parent; when they may inherit through a deceased adoptive parent; when they may inherit with respect to a gift left to “my children,” “my heirs,” or “my kindred”; and when they may inherit in the context of intestacy as one of the decedent’s surviving heirs.

Generally, adopted children are treated like natural born children. Issues can arise, however, regarding whether an adoptive may inherit from the estate of the natural (blood) parents, whose relationship was severed by the adoption; and also in regards whether the child may inherit (through the adoptive parent) from the adoptive parent’s own family (such as inheriting from the parents of a deceased adoptive parent).

Usually, adoption severs the rights of the adopted child from the natural born parents (i.e., the adopted out family). There are important exceptions.

First, if the adopted child both lived with the natural parent and he or she either was adopted by a spouse of either natural parent or was adopted after the death of either natural parent, it follows that the adopted child still inherits from the natural parent.

For example, consider a child whose parents get divorced, remarry, and who is then adopted by the stepparent. That child can still inherit from his natural parent’s estate provided the child lived with that natural parent.

Likewise, if a natural parent dies before the child was born and the child is later adopted by a spouse of either natural parent, the child can still inherit.

Whether an adopted child may inherit through his or her adopted parents and receive an inheritance from the adoptive parent’s own family is contentious.

For example, if the adoptee was adopted as an adult and did not live in his adoptive parent’s household as a minor, then it is very unlikely that the adopted child would be treated as a child for purposes of inheriting under the trust or will of the “adoptive” grandparents. Likewise, if the grandparent’s trust or will was signed after the adoption by their child, then the adoptive child is unlikely to be treated as a child.

Next, generally, unlike an adopted child, a stepchild and a foster child are not treated as children unless the relationship began while the child was a minor (i.e., growing up); continued throughout the lifetimes of parent and child; and there is clear and convincing evidence to show that the parent figure would have adopted the child except for a legal impediment that existed until the non-biological parent died. The objection of the natural parent to an adoption is an example of such a legal impediment, but only until the child becomes an adult at age 18.

In limited cases, a stepchild or foster child who is unable to meet the foregoing standard may still inherit under a theory of equitable adoption. That is, if there was an adoption agreement between the stepparent or foster parent and the child and the parties both faithfully observed the agreement, the child may be entitled to inherit a share of the parent’s estate.

Lastly, the foregoing discussion is not relevant where the deceased person’s estate planning documents expressly deals with the issue of whether or not the adopted child, step child or foster child inherits. That is, if the trust or will expressly disinherits an adopted child, or expressly defines the terms “child” or “issue” not to include step children or foster children, then the legal document controls.

Editor’s Note: Attorney Dennis A. Fordham is a Board Certified Specialist in Estate Planning, Trust and Probate Law. Fordham concentrates his practice in the areas of estate planning and various aspects of elder law, including Medi-Cal benefits. Mr. Fordham was qualified as a Certified Specialist in 2009 by the State Bar of California Board of Legal Specialization, and is licensed to practice law in California and New York. He earned his BA at Columbia University, his JD at the State University of New York at Buffalo, and his LLM in Taxation at New York University. His office is located on the 2nd Floor at 55 First Street, Lakeport, California and he can be reached by calling 707-263-3235 or e-mail at This email address is being protected from spambots. You need JavaScript enabled to view it..

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