Inclusion of Adoptees in Class Gifts to Issue: the Uncertainties and Incongruities of Probate Code Section 21115

• Jurisdiction: California,United States
• Author: David C. Nelson
• Publication year: 2006
• Citation: Vol. 12 No. 3

INCLUSION OF ADOPTEES IN CLASS GIFTS TO ISSUE: THE UNCERTAINTIES AND INCONGRUITIES OF PROBATE CODE SECTION 21115

David C. Nelson^*

I. INTRODUCTION

Testamentary instruments sometimes provide for a gift to a class comprised of the issue either of the transferor or of another person such as a child of the transferor. This type of class gift can take a variety of forms, including an immediate outright disposition, an immediate or subsequent income interest, an eventual remainder interest, or a gift over in default of lapsed or failed gifts. Where the instrument does not afford express guidance, a question can arise as to whether adoptees are included in such a class gift to issue.

Subject to an exception not relevant here, California's intestate succession laws provide that any part of an intestate estate not passing to the decedent's surviving spouse passes to "the issue of the decedent," if any.¹ At least in this context, "issue" includes a "child," and "child" means someone who takes as a child under the laws of intestacy.² In turn, a parent-child relationship is deemed to exist for this purpose between an adopted person and that person's adoptive parent or parents.³ Thus, under California's current intestate succession laws, "issue" includes adoptees.⁴ This uniform rule is clear, easy to apply, and, although some might disagree, at least arguably is rationally based on what a transferor presumably would intend.

One might think that an equally clear, uniform rule would apply to the inclusion of adoptees in class gifts to issue under testamentary instruments. One would be mistaken. Instead, the question is—or at least may be—governed by a statute the applicability of which is uncertain and which in application can be ambiguous or lead to questionable results. That statute is Probate Code Section 21115, which provides in relevant part:

(a) Except as provided in subdivision (b), . . . adopted persons . . . and the issue of these persons when appropriate to the class, are included in terms of class gift or relationship in accordance with the rules for determining relationship and inheritance rights for purposes of intestate succession.
(b) . . . In construing a transfer by a transferor who is not the adoptive parent, a person adopted by the adoptive parent shall not be considered the child of that parent unless the person lived while a minor (either before or after the adoption) as a regular member of the household of the adopting parent or of that parent's parent, brother, sister, or surviving spouse.⁵

II. A PRELIMINARY QUESTION: WAS THERE AN ADOPTION?

Before even reaching either the applicability or the application of Section 21115 to the inclusion of adoptees in class gifts to issue, a preliminary question always should be considered: Was there, in fact, an adoption? This seems like a rudimentary question answerable simply with a copy of an adoption decree. Indeed, leaving aside any issues as to whether the decree might be void or voidable for some reason, nothing more is probably necessary in cases involving California adoptions. However, another level of inquiry is warranted in cases involving non-California adoptions.

The reason for this second level of inquiry is that what one jurisdiction calls an "adoption" may not, in fact, have the same characteristics and effects as a California adoption. California adoptions create a legal parent-child relationship between the adoptive parent and the adoptee and sever the parent-child relationship between the adoptee and his or her natural parents.⁶ That may not be the case with adoptions in other jurisdictions. In that event, the adoptee may not qualify as issue under California law.⁷

In one recent case, a trust provided a life interest for the deceased settlor's daughter and, upon the daughter's death, became distributable to the daughter's "then living lawful issue . . . ."⁸ The daughter was survived by two natural children, as well as two individuals she had adopted as adults in Colorado.⁹ The issue in the case was whether the adoptees were entitled to participate in the trust as "issue" of the daughter.¹⁰ The Court held that the adoptees did not qualify as "issue" because the Colorado adult adoption statute under which they were adopted neither created a legal parent-child relationship between the daughter and the adoptees nor severed the parent-child relationship between the adoptees and their natural parents.¹¹ In reaching this conclusion, the Court explained:

The existence of a parent-child relationship is the sine qua non for an adopted person to qualify as 'issue' under California law. The simple incantation that a person was 'adopted' does not suffice.¹²
* * *
Unless the legal relationship between an adopted person and an adopting person embraces all of the mutual rights and duties of a parent and child, it cannot be said that the adopted person is the 'issue' of the adopting person, at least insofar as that word is construed under California law.¹³

In cases involving non-California adoptions, it therefore is important to ascertain whether, under the laws of the jurisdiction where the adoption occurred, the adoption created a parent-child relationship comparable to that which is the "sine qua non for an adopted person to qualify as 'issue' under California law."¹⁴ If not, then the adoptee does not qualify as issue of the adoptive parent.

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III. THE UNCERTAIN APPLICABILITY OF SECTION 21115

In some cases, the most frustrating aspect of Section 21115 can be determining whether it even applies. Two separate statutes may bear on this issue, and potentially dictate contrary results.

One ofthose statutes is Probate Code Section 21140. Both Section 21115 and Section 21140 are found in Part 1 of Division 11 of the Probate Code. In seemingly unequivocal language, Section 21140 provides that "[t]his part applies to all instruments, regardless of when they were executed."¹⁵ Standing alone, Section 21140 therefore appears to dictate that Section 21115 is applicable in all instances.

In fact, that may not be the case. A second statute, Probate Code Section 6103, provides in relevant part that, "[e]xcept as otherwise specifically provided, . . . Part 1 (commencing with Section 21101) of Division 11, do[es] not apply where the testator died before January 1, 1985, and the law in effect prior to January 1, 1985, continues to apply where the testator died before January 1, 1985."¹⁶ Section 6103 thus appears to limit the applicability of Section 21115 to circumstances where a testator dies on or after January 1, 1985.

There are several ways to attempt to reconcile the apparent inconsistency between Section 21140 and Section 6103, but no clear answers.

One possible answer is that these provisions really are not inconsistent at all. Read carefully, Section 21115 speaks in terms of when the instrument is executed, while Section 6103 speaks in terms of when the testator died.¹⁷ Taken together, then, these provisions could mean that Part 1 of Division 11 (including Section 21115) applies...