How to Incorporate Adopted Children or Stepchildren In Your Estate Plan

In many households, parents care for and form unique bonds with children that are not theirs biologically, such as adopted children and stepchildren. Families may have a blend of biological children, adopted children, and stepchildren in one household. Therefore, it is essential to understand the legal consequences of adoption for inheritance and succession reasons. Unfortunately, despite parents caring and loving their non-biological children, that does not necessarily provide them with equality in the eyes of estate planning laws. 


Adopted Children

When a parent decides to adopt a child, they are going through a legal process where they assume full responsibility for the child. Unlike foster parents or guardianship, adoption terminates all legal rights and obligations of the biological parent and transfers them to the adoptive parent. Once the adoption is legally approved, the adoptive parents will appear on the child’s birth certificate. 

After being legally adopted, the adopted child is now considered equal to biological children in the eyes of the law. Therefore, if a parent passes away without appropriate wills, trusts, and related estate planning documents, the adopted child will still have equal rights in the courtroom as the rest of your family. 


Unfortunately, unlike adopted children, stepchildren have essentially no right to any of their stepparent's estate in the eyes of the law. However, parents do not have to obtain legal parental rights like adopting to include stepchildren in their estate plan. When parents are planning their estate plan, they must ensure that the attorney understands and includes specific wishes regarding stepchildren inheritances in the will, trust, or other essential documents. Otherwise, the court will recognize biological and adopted children before stepchildren when contesting a family member’s estate. 

How does adoption affect inheritance rights?  

Adoption creates a legal child-parent relationship between the child and the adopting parent which means adopted and biological children of the same parent are treated equally in inheritance and succession law. 

As a result, an adopted child has the same entitlement as the biological children for the estate of the adopting parent, If the adopted parent lists their children in their will, adoptive children have the same right as biological children to inherit from the adoptive parent. Similarly, the right to inherit from the adoptive parent exists even if the parent dies intestate aka without a will.

On the contrary, when a parent gives up their child for adoption, they legally gave up their parental rights so that child has no right to the estate of the biological parents. Therefore, when a biological parent dies without a will or leaves nothing to the child they put up for adoption, the child will not have a valid claim against the birth parent’s estate. However, the biological parent can still make gifts to the child in the will or otherwise. If the biological parent wishes to include the child they put up for adoption in their will or trust then they must ensure that the estate planning attorney understands and includes it in the legal documents. 

Should I Adopt My Stepchildren?

There is no straightforward answer to this question and it cannot be answered based on this matter alone. The choice to adopt will impact everyone involved: the child or children you wish to adopt, the birth parents of said child/children, your spouse, any biological children you already have, your own family, etc. However, the bottom line is adoption will legally provide you with parental rights and ensure your adopted children are equal to your other children when inheritance is concerned. 

If the biological parents of the child/children you wish to adopt are minimally involved, it can be tempting to take advantage of this opportunity. However, adoption will also sever legal ties from the biological parents which mean your adopted child/children will be ineligible for inheritances from their biological parents. 

What happens if an adoptive parent dies without an estate plan?

If an adoptive parent passes away without estate planning, state laws of succession dictate the estate distribution. In New York, the state laws do not distinguish between biological and adopted children. Therefore, both children have equal entitlement to the deceased parent’s estate. 

If the adoptive parent left a spouse who is also a biological or adoptive parent for all the deceased’s children then the spouse inherits the whole estate. On the other hand, suppose the adoptive parent left a spouse who is NOT an adoptive or biological parent for all of the deceased’s children. In that case, a judge in the surrogate court determines their respective shares. Generally, the surviving spouse will receive a preferential share of the intestate estate, and the biological and adopted children divide the remainder equally. Lastly, if the deceased left no spouse, then biological and adopted children share the estate equally and can divide it amongst themselves. 

What happens if an adoptive parent dies without a will?

If the will of an adoptive parent makes a gift to “all my children,” it means both biological and adopted children of the deceased share the gift equally. However, a contrary provision could be written in the will. For example, a separate provision in the will could limit the definition of “my children” to ONLY the deceased’s biological children. If that is the case then “all my children” would exclude any adopted children, and they would have no entitlement to the gift.

If an adoptive parent leaves a will, but does not provide adequately for an adopted child who is a minor or a dependent, the adopted child could contest the will making a court claim for adequate support.

Sometimes parents do not fully understand the difference between guardianship, foster care, step-parenting, and adoption. Foster or step-parents raise the kids as their own, mistakenly believing that they have formalized an adoption, and the children have a default right to their inheritance. However, foster or step-children do not have the same inheritance rights as biological children of the deceased. Consequently, parents need to take extra care when reviewing their estate planning options and family bonds to achieve their desired wishes. 

To incorporate adopted children or stepchildren in your estate plan, contact the Law Office of Inna Fershteyn at (718) 333-2394.