Wills, Probate, and Adoption
DEATH AND TAXES—LIFE MIGHT BE EASIER WITHOUT THEM, but we’d have a lot fewer stories to tell. In this chapter, we’ll answer common questions about wills and property distribution. We’ll talk briefly about common law marriage, consider the case of the mysterious safe deposit box, look at the effect of illegitimacy on inheritance, and discuss a few legal issues arising from adoption.
My character died without a will. Who decides what happens to his property?
A person who dies without a will is called “intestate”—an odd word stemming from the Latin testare, to make a will. State law sets out the distribution of assets for intestate persons. If he were married without children, his surviving spouse takes everything he owned in his own name. Any assets he held with another person as “joint tenants with right of survivorship” pass directly to that other person and are not part of his estate. A common example is spouses, who often own their home as joint tenants; when the husband dies, all rights pass to the wife without becoming part of his estate or subject to probate. Joint tenancy with right of survivorship is also frequently used by an elderly parent who adds a child to her accounts to make bill-paying easier, especially in emergencies. But legal problems might arise if the child uses the joint account for personal reasons. And, when the parent dies, should the remaining funds go to the child on the account, or be split with the siblings?
Intestacy gets tricky when there is a surviving spouse and children. Typically, the “spousal share” of assets is one-half, with the remaining half split equally between any minor children. That leaves any older children nothing, which can be ugly, especially in step-families. Marital property is handled differently in the nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. “Community property” means each spouse has an undivided half-interest in earnings or property acquired by either spouse during the marriage. If your story is set in a community property state, keep in mind the differences; typically, half immediately goes to the surviving spouse, while the remaining half and any separate property are subject to intestacy laws.
If your intestate character left no surviving spouse or minor children, the estate is divided among other heirs as set out by state law: first degree relatives (parents and children) first, if they survive him, then grandparents and grand children, siblings, nieces and nephews, cousins, and so on. Distant relatives may sue to establish their right to inherit. How distant a relationship qualifies for inheritance varies, but the premise of those spooky gothic novels isn’t too far off—it is entirely possible to inherit from a relative you didn’t know existed.
The premise of those spooky gothic novels isn’t too far off—it is entirely possible to inherit from a relative you didn’t know existed.
A state or county usually has a public administrator who handles estates without a legally appointed PR (personal representative, called an executor or administrator in some states) or known heirs to take control of the assets, find heirs, and handle claims against the estate, such as unpaid debts or ongoing litigation. By statute, if a stranger or someone without known heirs dies in your house, you must also give notice to the public administrator.
Assets go to the state—called “escheat”—only if there are no legal heirs, either by will or by the intestacy statutes. Potential heirs may still make a claim, usually within two to seven years. Some states, such as Washington, allow a stepchild who has not been legally adopted to inherit if doing so will prevent escheat. The idea is that the intestate person would probably have preferred the stepchild to inherit, where there are no living blood relatives, rather than give his assets to the state. States typically hold funds for potential claimants for a time specified by statute; real or personal property may be auctioned. After the time expires, the state keeps the funds for a purpose specified by statute. In some states, funds go to a trust or permanent fund for the public schools, in others to the general fund.
Do lawyers actually conduct readings of the will?
No. A will-reading scene adds drama, but not realism. The lawyer for the estate typically sends copies to the named PR and beneficiaries, although he might make copies available on request instead if there are numerous beneficiaries and the estate is small. The estate’s accountant receives a copy. And copies should be sent to anyone who might challenge the will, such as relatives still living who were named in previous wills but not in the current one, or who were explicitly disinherited, to start the time clock on their right to file a challenge.
Once a probate file is opened, the will becomes part of the public record, which anyone can see—unless the judge orders it sealed, which is rare.
The wills of many famous people, including Michael Jackson, Princess Diana, Walt Disney, and Richard Nixon, are reproduced online. Janis Joplin left $2,500 for a party “as a final gesture of appreciation and farewell” to her friends. Jerry Garcia distributed his guitars. Napoleon Bonaparte got political in his will, calling his death a premature assassination “by the English oligarchy and its tool,” labeling the acts of his enemies treason and calling on “the posterity of France [to] forgive them as I do,” and pardoning another for a libel “replete with false assertions and falsified documents.” He left his son his personal items, including his field-bed, saddles, spurs, chapel-plate, and books, and pleaded with him “never to forget that he was born a French prince,” or to allow himself to be used “to oppress the nations of Europe.” Richard Nixon left a large bequest to his official library, along with historical and commemorative items; he left his notes and diaries to his daughters, with instructions that they not be published, sold, or made public, and for their ultimate destruction.
The British National Archives website includes the wills of Shakespeare and Jane Austen, and a searchable website of historical wills, starting in 1348. (See Book Links.)
My character’s vindictive stepmother lied to get him cut out of his father’s will. How can he get his share?
He’ll have to file a claim with the PR, and if it’s denied, contest the will in probate court. He’ll need to prove he was left out of the will through undue influence on his father or his father’s mental incompetence. If the challenge succeeds, the entire will may be invalidated, or just a portion of it. The father’s property will then be distributed according to the terms of an earlier valid will, if there is one, or by the laws of intestacy. Strict timelines and procedures apply.
Wills sometimes include a penalty clause, denying a person who contests the will any right to inherit. In most states, penalty clauses are unenforceable if the person had good cause for the challenge.
My character’s vindictive stepchildren want to deny her any right to her husband’s estate. How can she get her share?
It depends. If he left a will naming her but the children filed a challenge to exclude her or limit her share, she’ll need to show that the will expressed his true intent and that he was of sound mind and not unduly influenced when he signed it. She’ll need a good lawyer, her husband’s medical records, and any other relevant writings (such as a letter or journal entry stating his intent to provide for her in his will). Do any witnesses support her claim, e.g., the lawyer who drafted the will, his tax and financial advisors, friends or relatives?
If he left a will excluding her, was it written before or after the marriage? In some states, a will written after marriage must state intent to exclude the spouse. The person writing the will is called the testator, sometimes testatrix for a female. He might have left her out because she had her own money, or he might have provided for her separately by gifts or a trust. Those are important facts as well.
The person writing the will is called the testator, sometimes testatrix for a female.
And, in either case, the Uniform Probate Code, adopted with variations in most states, provides a spousal elective share. A surviving spouse may choose or “elect” to “take against the will,” giving her a percentage (of up to 50 percent) that depends on the length of the marriage. In other words, she could elect to take a percentage in lieu of other rights she might have to his property.
If he left no will, of course, state intestacy laws govern. Their provisions are mandatory and neither she nor those nasty kids can get more than the state legislature provided.
What is undue influence on the terms of a will?
“Undue influence” means pretty much what it sounds like—that a person used his or her relationship to the testator to induce him to leave property a certain way. If undue influence is found, a judge can invalidate the entire will or a specific provision. However, the key here is “undue.” Undue influence occurs when someone uses a confidential relationship or position of authority to take unfair advantage of the testator, effectively substituting his or her intent for the testator’s. The judge considers the nature of the relationship, the testator’s mental and physical condition at the time, his ability to withstand influence, whether the will or provision distributes assets in a way that shows influence or mental unbalance, and any other relevant circumstances, like education, literacy, and isolation. A close relationship between a testator and a beneficiary not related by blood or law is not enough to show undue influence. The person challenging the will has the burden of proving undue influence.
Here’s a typical scenario: an elderly widow executes a will leaving her property equally to her two children. A few years later, while living with her, her son takes her to a new lawyer to write a will leaving everything to him. After her death, the daughter challenges the second will, claiming undue influence. Her doctors, nurses, and friends testify that she suffered severe dementia and physical problems, no longer remembered that she had a daughter, and did not know how much property she had. The court finds undue influence and accepts the previous will. In other cases, unscrupulous friends and relatives have taken advantage of people with dementia, paranoia, deteriorating ability to understand English, and other vulnerabilities to get them to change their wills, increasing a small bequest or leaving everything to someone not previously named in the will and excluding close relatives. Tragic, but not uncommon. In short, a writer’s dream.
What does “of sound mind” really mean?
A testator must have sufficient mental capacity at the time he signs a will to generally understand the nature and extent of his property, what making a will means, and the names and his relationship to the people affected by his will. Such people are sometimes referred to as “the natural objects of his affection,” such as relatives by blood or law (that is, by marriage or adoption). To challenge a will on grounds of mental capacity, your character will need to show the testator was lacking in at least one of those areas.
For example, can she show that because of Alzheimer’s disease or a brain injury, her father no longer knew he had a daughter or had formed inaccurate ideas about her that led him to exclude her from the will? She’ll need evidence from his doctors, caregivers, friends, or other relatives. Did the lawyer who drafted the will and the witnesses lack knowledge of his mental status? A person may appear competent at some times but not at others—the question is whether he actually was competent at the time he signed the will.
A person may appear competent at some times but not at others—the question is whether he actually was competent at the time he signed the will.
My character’s late husband did not rewrite his will after they married. What rights does she have as surviving spouse?
In most states, if a testator remarries after executing a will, the surviving spouse will be entitled to inherit, as if he had died intestate, any assets not specifically left to a child who is not a child of them both. An illustration: Art wrote a will leaving two-thirds of his estate to his only child, Brian, and one-third in various individual and charitable bequests. Art then married Connie, who is not Brian’s mother. Art died without changing his will. Brian’s share of Art’s estate is untouched. The laws of intestacy apply to the remaining one-third. How much of that third Connie receives depends on state law, including whether it’s a community property state.
But if Art specifically left everything to Brian, Connie’s only remedy would be to elect the spousal share we talked about above. If you want her left with nothing but anger and a motive for revenge, tie up Art’s property in other ways or leave so little cash that she feels destitute.
Who can witness a will?
Anyone over eighteen and legally competent can witness a will. In some states, a beneficiary can’t be a witness; in other states, that’s not a problem. Some testators bring friends with them to serve as witnesses. Often, law office staff are called in to listen while the lawyer reviews the will with the testator or asks questions to establish that it’s his will, his intent, and so on. The testator’s signature block looks something like this:
I, ………., the testator, sign my name to this instrument this…… day of……, 20…, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my will, that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes expressed in it, and that I am 18 years of age or older, of sound mind, and under no constraint or undue influence.
Most wills are “self-proving,” meaning that when the will is admitted to probate, it’s not necessary to call the witnesses to testify that the testator signed the will in front of them, and so on. The witness signature clause includes a statement like this:
We, ______, and _______, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as the testator’s will, that the testator signs it willingly (or willingly directs another to sign for the testator), that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator’s signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence.
The signatures should be notarized.
Are handwritten wills enforceable?
A handwritten will is enforceable in about half the states if it meets all the requirements of a will—that is, it’s in writing, signed, and witnessed. In other words, a will need not be typed to be valid. The handwriting need not be the testator’s, so long as he signed it or directed its signature for him. The same rule applies to revocations or amendments, often called codicils.
Under the Uniform Probate Code, a handwritten will is valid if the material provisions, which specify who gets what assets, are written and signed by the testator. No witnesses are required. Some states previously required a handwritten will not witnessed to be entirely in the testator’s handwriting, and a few still do. These wills are called holographic, meaning all in one handwriting. Some people mistakenly refer to any handwritten will as holographic.
Some states recognize handwritten wills only if the testator is on active duty military and for a specific period of time (usually a year) after his return from duty. A few states that usually don’t recognize handwritten wills do so if the will was executed in a state that does recognize them.
Handwritten wills and codicils are often executed in emergencies. Real-life examples include miners trapped underground, airplane crash victims who survived the crash but died before rescue, and others who reach death’s doorstep rapidly. Veteran broadcaster Charles Kuralt handwrote a letter to the woman with whom he’d had a secret, thirty-year relationship, from the hospital, saying he would “have the lawyer visit the hospital to make sure you inherit” certain property. He died two weeks later, without calling the lawyer. His estate characterized the letter as a statement of future intent, but the court recognized it as a valid codicil intended to amend his earlier will and gave her the property.
How is a provision in a will leaving money for the care of a pet carried out?
Obviously, pets can’t inherit directly. It’s hard to manage money when you’ve got a paw instead of a thumb. The most common method to provide for a pet after the testator’s death is to designate a caretaker and make a specific bequest to that person for the pet’s care. Make sure, though, that the caretaker has agreed to take the animal, so the pet isn’t left in limbo during probate. The PR may advance funds for the pet’s routine or special care while probate is still pending—that is, before the estate “closes” and final distributions are made.
If the will says, “I leave $2,500 for the care of my Rottweiler, Bruno,” without designating a caretaker, the PR will need to find one. The PR may choose to pay the bequest directly to the caretaker, especially if it’s small, or to set up a trust if it’s a large sum. If the animal predeceases the testator, or dies before the estate is closed, the PR must leave any unused funds in the estate, to be distributed by its terms, unless the will designates that any unused funds go elsewhere, such as to an animal charity.
Alternatively, the testator could set up a trust for the pet’s care, independent of the will. That way, funds are available immediately. “Pet trusts” are an emerging area of the law. California’s pet trust statute took effect in 2009, and allows for the creation of legally enforceable trusts for the life of the pet. In other states, a traditional trust is created, with a trustee who manages the funds and a caretaker who is the designated beneficiary; they may be the same person or not.
Numerous shelters now specialize in caring for animals who have been provided for. It’s a situation ripe for humor, but also, alas, for potential abuse.
Hotelier Leona Helmsley, sometimes called “the Queen of Mean,” left $12 million in trust for her Maltese dog, Trouble, when she died in 2007, although a judge later reduced Trouble’s share to $2 million. She also specified that he be buried next to her in the family mausoleum. She designated a large chunk of a charitable trust to animal welfare groups; the trustees reduced that amount to $1 million, mostly for service dog training, and gave the remaining $135 million of her estate to other charities, prompting a lawsuit by several animal welfare groups seeking half.
In my story, a husband and wife were killed in a double homicide. Their wills left all their property to each other. What happens to the property?
Most wills include a survivorship clause providing that if the spouse does not survive the testator by a specified length of time, e.g., twenty-four or seventy-two hours, the testator’s assets will be distributed as if the spouse had predeceased him. In most states, by statute, any heir (not just a spouse) who does not survive the decedent by a specified time is treated as predeceasing him; the statute kicks in if the will does not include a survivorship clause or there is no will.
So, in this case, if there was a survivorship clause and both spouses died within the time specified in the clause, each spouse’s property passes according to the terms of his or her will, as if he or she had no spouse. Many couples own their homes and primary bank accounts in joint tenancy with rights of survivorship; in this case, her half of the jointly owned property goes to her legal heirs, along with all her separate property, e.g., bank accounts, cars, real or personal property, business interests held in her own name. Likewise for him. The result is the same in community property states.
If the wills had no survivorship clause, or they left no wills, the state statute controls.
What looked like a double homicide turns out to be a murder-suicide. How is the property distributed then?
Same result. Most states have statutes prohibiting a murderer from inheriting from his victims, but don’t prohibit a murderer’s heirs from inheriting from him. An illustration: Jason and Kara are married. Jason kills Kara, then turns the gun on himself and dies a few hours later. Both wills include a survivorship clause. Since neither survived the other for the requisite time, their assets are distributed according to their wills but as if unmarried. So, say Kara’s will left half her assets to Jason, one-quarter to her daughter Lindsay, who is not Jason’s child, and one-quarter to her daughter Meghan, who is Jason’s child. Because Jason is treated as predeceasing Kara, her assets are split evenly between her daughters, Lindsay and Meghan. Jason’s will left half his assets to Kara, one-quarter to Meghan, and one-quarter to his sister Nicole. Meghan and Nicole split the pot.
Either Lindsay or Meghan could sue Jason’s estate for wrongful death on behalf of Kara and for personal injury on behalf of themselves. If Lindsay files suit and proves that Jason killed Kara, she may be awarded both her mother’s damages, such as lost income and pain and suffering between the time of the shooting and death, and her own, for loss of the relationship with her mother and her own grief. If Lindsay is a minor, her damages will be greater than if she were an adult. Damages awarded to her come out of Jason’s estate, reducing or even eliminating the amount available to Meghan and Nicole. Meghan could also sue Jason’s estate for her mother’s death and her own losses; any damage award would likewise reduce the value of the estate, including both her own inheritance and Nicole’s.
What are the duties of a personal representative?
A personal representative (sometimes called an executor or administrator) is the person legally appointed to settle an estate. Although a testator may name a PR, the judge ultimately makes the appointment. If the named PR and alternate are unable or unwilling to serve, or no will was left, state law may specify the order of priority for appointment, e.g., the spouse, the parent of any minor children, an adult child, a parent, or a sibling.
Minimum requirements vary by state, but minors and felons may not serve. PRs must have sufficient mental and physical capacity. Some states require residency, while others don’t. Banks and trust companies may be appointed if authorized in that state. Attorneys often serve as PRs.
If your character leaves a will, he should name as PR someone able to handle legal and financial matters fairly and efficiently. The PR must protect the beneficiaries’ interests, resolve any conflicts, organize documents that may be hard to find or which have been left in disarray, and understand financial matters and make decisions. Hard feelings sometimes arise when a family member PR makes decisions that seem unfair to other relatives, who may not understand that the PR is required to enforce the terms of the will and follow the law, whether the results seem fair or not. Choose the responsible businessman son or the detail-loving paralegal daughter over the drug-addicted spendthrift, even if he was once a CPA—that is unless you are looking to set up family conflict. Be sure the PR agrees in advance to serve to avoid problems later, unless those problems will further your story.
In essence, an estate is a legal entity and the PR runs it. The estate is responsible for all the decedent’s financial and legal obligations. The PR locates the will and other important documents, like bank records and insurance policies. She may open a checking account to pay final medical bills, utilities, and other expenses—and provide for the immediate needs of dependents. She’ll need to carry out specific bequests made in the will, making sure Stacy gets Grandma’s wedding ring and Sarah gets the ruby necklace, that $5,000 goes to the local Humane Society to build a new cathouse, and that money left for a party be spent on a party. She’ll need to deal with personal property not addressed in the will. If the testator owned a home or other real estate, getting it cleaned out and sold can take a lot of time. The PR becomes the temporary overseer of businesses the testator owned, and may need to make arrangements for their sale or transfer, while supervising their continued operation.
In essence, an estate is a legal entity and the PR runs it. The estate is responsible for all the decedent’s financial and legal obligations.
A major part of the PR’s responsibilities is to ensure that taxes are properly paid. She’ll probably work with an accountant and estate lawyer. She may also need to bring or continue litigation on behalf of the estate; particulars depend on state law. For example, if the decedent was killed in an auto accident, the PR may file a wrongful death action on behalf of the decedent and a survival action on behalf of the heirs. If the decedent was already party to a lawsuit, the estate is substituted as a party, and the PR makes the necessary decisions.
The PR also handles the statutory obligations of probate while working with the estate lawyer, such as publishing notices to potential creditors, making the initial determination whether to accept or deny claims against the estate, and responding to any legal challenges to the will.
Wills should specify how the PR is to be paid, make a bequest in lieu of payment, or refer to the institution’s standard fee schedule for banks or trust companies. If no provision is made, state law governs payment. It may be a percentage of the value of the estate, an hourly rate, or some other “reasonable fee” set by the court. A PR may be paid extra for additional services, such as running a business. If the PR is a beneficiary, she may be better off declining payment and avoiding income tax.
What is a common-law marriage, and is it legal?
Be careful about that “common-law” characterization. Many people have the misconception that if a couple lives together for a certain number of years, they magically become married in the eyes of the law. Common-law marriage has specific requirements. It is recognized in Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, and Utah, and in the District of Columbia. About two dozen states have abolished it, and some have never recognized it.
Generally speaking, common-law marriage requires that each person intend to be married and have legal capacity to marry—that is, they are of legal age and not already married. Some states require cohabitation, representing themselves as married, or consummation. Intent is demonstrated by the circumstances as a whole—e.g., holding a ceremony, referring to each other as husband and wife, wearing wedding rings, using the same last name, and so on, although there’s no one definitive criterion. As one court said, marriage can’t just sneak up on you.
Common-law marriage requires that each person intend to be married and have legal capacity to marry.
Common-law marriage isn’t distinct from legal marriage—it’s simply another way to become legally married. The traditional way, with a license and a proceeding before a judge or clergy member, is called solemn, ceremonial, or statutory marriage. If a couple forms a common-law marriage in one state and then moves to another, they are legally married in the second state, even if it does not allow common-law marriages to be formed there. Similarly, a couple who formed a common-law marriage in a state that later abolished it (e.g., Ohio, which abolished it in 1991, or Pennsylvania, in 2005) is still legally married in all states.
Intent to be married will not create a marriage the state would not recognize. So, it’s not a way for same-sex couples to legally marry in states that do not recognize same-sex marriage.
Common-law marriage typically becomes an issue after one spouse dies and the other tries to establish the marriage and claim a share of the estate. Other beneficiaries, such as the decedent’s adult children, may protest. New Hampshire allows common-law marriage claims only in that situation.
By the way, there is no common-law divorce. To legally end a common-law marriage, a couple must go through regular divorce proceedings. Of course, many don’t, but it can be necessary in resolving property and custody disputes.
(For sources of specifics on state marriage and divorce laws, see Book Links.)
My character finds a safe deposit box key in her late aunt’s desk drawer. How can she find the box and get access to it?
Most keys, and the cute little envelopes they come in, don’t identify the institution where the box is held, for the box holder’s safety. The best tracing method is the process of elimination. Start with banks or credit unions where you know the person had an account, then move out geographically to places where she could have kept an account. If no luck locally, where did she last live? Did she travel to another community regularly?
Of course, most institutions will confirm that a person had a box only to the legally appointed PR of an estate or guardian of a person still living, or to their lawyer. Access requires signatures, so the PR will need a court order showing her appointment in order to allow the institution to transfer ownership and access to her. But a character certainly might try to obtain access, using a clever cover story.
My firm once handled the estate of a migrant orchard worker who died intestate. Initially, he appeared to have little more than a few cherry-stained clothes and a white pickup—and a key to a safe deposit box, which contained the key to another, which contained another, and on it went. Ultimately, we discovered several wives, numerous children, and real property in three states. Of course, truth is stranger than fiction because fiction has to make sense, but if you’re alert to the technical details, estate and probate problems can make riveting plots.
Are adopted children treated differently by the laws of inheritance than biological children?
Generally, no. Once an adoption decree is entered, the child has a full legal relationship with the adopting parents and no longer has a legal relationship with the biological parents. This means that an adopted child inherits from the legal—that is, adopting—parents, grandparents, and other relatives just as any biological relative would.
Despite that, some states allow adopted children continued inheritance rights from biological relatives. Kansas, Louisiana, Rhode Island, Texas, and Wyoming allow adopted children to inherit from biological parents after the decree is entered, but bar the biological parents from inheriting from the children. Alaska, Idaho, Illinois, and Maine allow all inheritance rights to continue if provided in the adoption decree. In Pennsylvania, adopted children may inherit from biological relatives other than parents—a biological grandparent or aunt, for example—if the relative has maintained a familial relationship with the child, as in open adoptions and stepparent adoptions. About a dozen states provide that a child adopted by a stepparent may still inherit from the biological parent whose relationship is terminated by the adoption. For example, Alan and Becca have a child, Cari; they divorce and Becca marries Dan, who adopts Cari. Cari may inherit from Alan, Becca, or Dan, if any of them dies intestate.
Most states’ statutes provide that children not named in a will because adopted (or born) after the will was signed will be treated the same as children born earlier. If the will says “all my assets go to my children, Ethan and Frank,” the after-adopted (or after-born) child Ginger will get an equal share, unless it’s clear from other evidence that Ginger was left out intentionally or was provided for outside the will.
For state-by-state specifics on adoption, child abuse and neglect, and child welfare laws, consult the amazing database on the U.S. Department of Health and Human Services Child Welfare Information Gateway site, or the Cornell University Legal Information Institute tables. (See Book Links.)
How can my adopted character get access to adoption records and find out who her biological parents are?
State laws and procedures on access to adoption records vary widely, have changed considerably over time, and may depend in part on how records were kept at the time of adoption.
Nonidentifying information is usually given to the adopting parents at the time of adoption. It may be a one-page checklist, or as for a friend adopted in California in the early 1950s, a lengthy social services report, prepared at the time of adoption. The report summarizes her birth parents’ “social history,” including race, ethnicity, and religion, gives a general physical description including age and eye and hair color, and summarizes their education, employment, family background, relationship, and medical histories. It also gives a summary of the pregnancy and birth, and presents the reasons given for placing her for adoption. All names had been redacted. In small communities, or where the adopted child has other information, such as photographs, letters, or other relatives’ names, the report may provide enough to start a successful investigation.
If not provided at the time of adoption, a parent or child can request the information later, though some states do not allow requests by minors. A handful—California, Idaho, Nevada, and New Jersey—restrict requests to adoptive parents. If your character’s adopting parents are no longer alive, she may need a court order to give her access; if they are alive but oppose her search, she’ll need to try another route. Some states maintain registries to handle all requests for information. A few require a court order. Others allow adoptive parents to ask the registry to contact birth parents for additional medical information when necessary. All contact is confidential, unless the two sets of parents agree otherwise.
Identifying information is available in most states through registries and may contain names, a copy of the original birth certificate, unredacted social and medical information, and last known contact information, including any changes in the birth mother’s name. The birth parents may consent to have contact information provided if the child requests it. Of course, it may not be current, leading the child on a hunt. If there’s no record of consent, the child may seek a court order allowing release of files; typically, that requires “good cause,” such as a need for medical information or another compelling reason that outweighs the right to confidentiality. Some states maintain mutual consent registries, where adopted children and birth parents sign up voluntarily, indicating whether they are or aren’t willing to have contact information provided if ever requested. Other states default in favor of disclosure, unless nondisclosure is specifically requested. Some use confidential intermediaries to make contact and convey disclosure requests.
A few states, including Arkansas, Mississippi, South Carolina, and Texas, mandate counseling for adopted children who request information about the possible consequences of search and contact with the birth family. About two-thirds also allow biological siblings access to records. For links to state laws, see Book Links.
Can my character’s illegitimate grandchild inherit his fortune?
Yes. Illegitimacy is no longer a bar to inheritance. Obviously, questions about paternity may arise, and are answered by the usual suspects: testimony, written records, and, if necessary, DNA evidence.
In a series of decisions ending with Trimble v. Gordon (1971), the U.S. Supreme Court held that state statutes preventing illegitimate children from inheriting violated the children’s constitutional rights to equal protection. In Trimble, the challenge was to an Illinois law allowing illegitimate children to inherit from their mothers, but not from their paternal line. The Court held that limiting children’s inheritance rights did not reasonably serve the state’s purpose of promoting legal family relationships. In other words, punishing children does not prevent parental sins. Many states had already reached the same conclusion and changed their laws. For stories involving earlier inheritances, check when your story state changed its law.
TIP: Family secrets often emerge at deathbeds, funerals, or reunions. A previously undisclosed adoption, a claim of incest, or a claim that a much-younger child is the illegitimate child of an older child can surface unexpectedly, creating new conflicts and motives.
Illegitimate children had more rights at some times and in some countries than in others. Questions about legitimacy and inheritance can be important elements of plot in historicals—think of many of Shakespeare’s plays. Henry Fielding’s The History of Tom Jones: A Foundling (1749) is the story of an illegitimate child left on a rich man’s doorstep. Legitimacy also plays a part in Jane Austen’s Emma (1815), Nathaniel Hawthorne’s The Scarlet Letter (1850), Charles Dickens’ Bleak House (1853), Dorothy L. Sayers’ The Nine Tailors (1934)—perhaps reflecting Sayers’ own experience as an unmarried mother—and John Irving’s The World According to Garp (1982). And the real-life story of Hank Williams’ daughter Jett combines an adopted child’s search for information, an illegitimate child’s fight to establish the right to inherit, the rights of a posthumously-born child, and fraud, by relatives who intentionally suppressed a written agreement Hank made to take care of the baby and who kept all information about it from her and her adoptive parents.