Chapter E. Adoption

JurisdictionWashington

E. ADOPTION

E.1. In General

Under RCW 11.02.005(8),46 the definition of "issue" includes all descendants of an individual, and an adopted child is deemed a lineal descendant of both adoptive parents and the adoptive parents' lineal ancestors. Therefore, under the general scheme of distribution as set forth in RCW 11.04.015, adopted children are included as takers

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whenever the term "issue" appears in the statute.47 This goes further than merely making adopted children of the decedent eligible to take from his or her estate; it also extends eligibility to adoptees of ancestors and collateral relatives by bringing those adoptees into the definition of "issue."

Lawful adoption is a prerequisite to the status of issue and therefore to being a taker of the estate. A stepchild who is not adopted does not have the status necessary to be eligible to take from the estate.48 If, however, the only contending takers of an estate are stepchildren and the state of Washington (by escheat), RCW 11.04.095 provides that a stepchild inherits ahead of the state if the deceased stepparent had received all or substantially all of his or her estate, by will or otherwise, from a predeceased spouse who was the natural parent of the stepchild. It is questionable how successfully the property transfer could be traced from the natural parent to the stepparent if the transfer had taken place a long time before the death of the stepparent.49

E.2. From, Through, and by Natural Parents

In 1965, the legislature passed RCW 11.04.085, prohibiting an adopted child from inheriting from his or her natural parents.50 This also prevents inheritance through the natural parents from their collateral or other relatives.51

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It was contended in In re Estate of Wiltermood52 that the 1965 statute could not operate to take inheritance rights away from children who were adopted before 1965. The court, however, held that an heir has no interest until the death of the intestate ancestor, because a living person has no heirs (nemo est haeres viventis).53

RCW 26.33.260, enacted in 1995, divests the natural parents of an adopted child (except a natural parent married to the adoptive parent) of "all legal rights and obligations in respect to the adoptee." This would seem to include any right of inheritance the natural parent previously had. In any event, it is now clear that Washington law "extinguishes the biological parent's right to inherit from his or her biological child who has been adopted."54

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E.3. From, Through, and by Adoptive Parents

Under the general definition of "issue," as discussed above, adopted children have the same rights as natural children to inherit from their adoptive parents.55 As is true of a natural child, the right of an adopted child to inherit from an adoptive parent cannot be lost simply by the parent's intent to disinherit. That intent must appear in a properly executed will that effectively transfers the property of the deceased parent and thereby avoids intestacy.56 Under former RCW 26.32.140, adoptive parents and adoptive kin were acknowledged as having the same rights to inherit from the adopted child as the natural parents had prior to the adoption. That statute was repealed in 1985. The current statute, RCW 26.33.260, refers only to the rights of the adopted child (and the natural parents) and does not mention the inheritance rights of adoptive parents or adoptive kin. Presumably, however, their right to inherit from the adopted child will continue to be the same as those of natural parents and kin, because the overriding policy behind adoption is to substitute the adoptive relationship for the natural relationship.

An unsettled question is the right of an adopted child to inherit from the adoptive parents if the child has been adopted a second time. The court in In re...

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