The Adoptee Trap, the Accidental Beneficiary, and the Rational Testator
| Publication year | 2013 |
| Pages | 29 |
| Citation | Vol. 42 No. 2 Pg. 29 |
By Gordon Williams.
Articles Trust and Estate Law
Trust and Estate Law articles are sponsored by the CBA Trust and Estate Section. Topics include trust and estate planning and administration, probate litigation, guardianships and conservatorships, and tax planning.
Coordinating Editors
David W. Kirch, of David W. Kirch, P.C., Aurora—(303) 671-7726, dkirch@dwkpc.net; Constance D. Smith, of Fairfield and Woods P.C.—(303) 894-4474, csmith@fwlaw. com
About the Author
Gordon J. Williams is the sole shareholder of Gordon J. Williams, P.C., with offices in Colorado Springs. His practice focuses on estate planning, probate of decedent’s estates, trust administration, guardianships, conservatorships, elder law, and custodial and kinship adoptions—(719) 471-9300, gordlaw@aol.com.
Colorado’s intestacy statutes provide that adoptees may inherit from and through terminated parents, and may be included in class gifts of the terminated parents and grandparents. This article discusses circumstances in which adoptees take as heirs, beneficiaries, and beneficiary designees.
A client’s child or grandchild who has been adopted away from the client’s family still could be the client’s heir, devisee, or beneficiary designee. This may occur despite the termination of parental rights, despite the child having a new parent, and despite the client’s contrary desire. On July 1, 2010, amendments to Colorado s intestate succession laws[1] vested certain adoptees with the right to inherit from and through parents whose parental rights have been terminated. This includes the right to an intestate share, to a class[2] devise in a will, to a distribution from a trust to a class, and to a share of a non-probate[3] distribution resulting from a beneficiary designation to a class.
As a consequence, former parents and grandparents unwittingly may include adoptees as heirs, devisees, or beneficiary designees, contrary to what they desire and believe to be the case. These vested interests are the result of an amendment to CRS § 15-11-114 and of the addition of CRS §§ 15-11-115 to 15-11-122 (referred to as Subpart 2) to Colorado’s intestate succession laws. Section 15-11-114 prohibits former parents from inheriting from former children, [4] and Subpart 2 describes and governs the circumstances under which adoptees inherit from and through former parents. This article addresses the effects of the 2010 amendments on adoptees’ and former parents’ rights to a decedent’s property under Colorado’s intestate succession and class gt statutes. [5]
Overview of Intestate Succession and Class Gift Laws
Before the 2010 amendments, intestate succession and class gift laws provided that adoptees and parents whose parental rights were terminated had no right to inherit from each other’s intestate estates unless certain circumstances and deadlines were met. A former parent could inherit from a deceased adoptee if the adoptee had no will and no surviving heir (based on the new family line created by the adoption), and if the former parent filed a petition requesting an intestate share within ninety days of the adoptee’s death.[6] Likewise, an adoptee could inherit from the former parent if the parent had no will and no surviving heir, and if the adoptee filed a petition requesting an intestate share within ninety days of the parent’s death.[7]
Now, former parents have no right to inherit from adoptees.[8] However, adoptees and their issue are heirs of former parents and grandparents who leave intestate property or class gifts if the adoptees were adopted under the following circumstances: (1) stepparent adoptions;[9] (2) second-parent adoptions;[10] (3) adoptions in which the adoptive parent was a relative of the genetic parent;[11] (4) adoptions in which the child was adopted by any person after the death of both genetic parents;[12] and (5) the child was conceived through assisted reproduction, a parent–child relationship was established, the parent gave up the child for adoption or passed away, and the child subsequently was adopted under one of the foregoing circumstances.[13]
The amendments changed the intestate and class gift landscape such that terminations of parental rights and adoptions now impact estate plans.[14] A testator’s failure to include provisions in wills and other governing instruments[15] regarding adoptees may result in either the unintended inclusion of adoptees as beneficiaries or the unintended exclusion of adoptees to whom the testator wanted to leave property. Additionally, unless advised by counsel or the court, parents whose rights are terminated are unlikely to know that their soon-to-be former children and issue still may be their heirs, devisees, or beneficiary designees. Likewise, soon-to-be adopted children are unlikely to know that they may remain heirs, devisees, or beneficiary designees of former parents and grandparents. Consequently, the amendments reach beyond estate planning and probate matters.
Definitions—The Starting Point
Section 15-11-114 and Subpart 2 are definition driven. Section 15-11-115 provides a number of definitions regarding heirship and class gifts vis-à-vis adoptions. They are as follows:
>"Adoptee" refers to an individual who is adopted.[16]
>"Assisted reproduction" means "a method of causing pregnancy other than sexual intercourse."[17]
>"Genetic father" means "the man whose sperm fertilized the egg of a child’s genetic mother, " but if "the father–child relationship is established under the presumption of paternity under section 19-4-105, C.R.S., the term means only the man for whom that relationship is established."[18]
>"Genetic mother" means "the woman whose egg was fertilized by the sperm of a child’s genetic father."[19]
> "Genetic parent" means "a child’s genetic father or genetic mother."[20]
> "Relative" means "means a grandparent or a descendant of a grandparent."[21]
The following definitions from the Colorado Probate Code[22] also are necessary to know when reviewing the statutes:
> "Child" is "an individual entitled to take as a child under [the Probate Code] by intestate succession from the parent whose relationship is involved and excludes a person who is only a stepchild, a foster child, a grandchild, or any more remote descendant, "[23] and "includes [a] child by adoption."[24]
>"Child of assisted reproduction" is "a child conceived by means of assisted reproduction by a woman other than a gestational carrier under section 15-11-121."[25]
> "Descendant" means "all of the individual’s lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in [the Probate Code]."[26]
>"Devisee" is a "person designated in a will to receive a devise."[27]
> "Gestational child" is "a child born to a gestational carrier under a gestational agreement."[28]
>"Heirs" are "persons, including the surviving spouse [unless remarried], who are entitled under the statutes of intestate succession to the property of a decedent."[29]
>"Parent" "includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under [the Probate Code] by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent, or grandparent."[30]
The term "parent–child relationship" is not defined, even though (1) it is used in CRS § 15-11-114 to bar a terminated parent from inheriting; (2) a person’s right to inherit is contingent on its existence; (3) Subpart 2 is titled "Parent–Child Relationship"; and (4) it is used in seven of eight statutes in Subpart 2. The seemingly logical definition is that of a similar term, "parent and child relationship, " which is defined in Colorado’s Uniform Parentage Act[31] as:
the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. "Parent and child relationship" includes the mother and child relationship and the father and child relationship.[32]
This definition is appropriate for purposes of CRS § 15-11-114, but is not fully sufficient for purposes of Subpart 2. The Colorado Court of Appeals has used "parent and child relationship" interchangeably with "parent–child relationship, "[33] despite there being no statutory reference in Title 19 to a "parent–child relationship" since 1977.[34] Additionally, CRS § 15-11-114(1)(a) uses "parent–child relationship" in the context of being "judicially reestablished" between a child and a parent whose parental rights in the child had been terminated. The term "judicially reestablished" in § 114(1)(a) is a reference to Colorado’s Uniform Parentage Act in Part 4 of Title 19, which provides the manner and procedures that establish the "parent and child relationship."[35]
As tempting as it is to apply the Title 19 definition of "parent and child relationship" to Subpart 2, it would be a mistake to do so without consulting Subpart 2 for guidance. An additional definition is included in Subpart 2 at CRS § 15-11-116, which defines the effect of the existence of the parent–child relationship, and which provides:
Except as otherwise provided in section 15-11-119, if a parent–child relationship exists or is established under this subpart 2, the parent is a parent of the child and the child is a child of the parent for the purpose of intestate succession.
The pertinent clauses in this section are "if a parent–child relationship exists or is established under this Subpart 2, the parent is a parent of the child and the child is a child of the parent for the purpose of intestate...
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