Probate

Probate attorneys considering the effect of adoptions in probate litigation may want to consider the following opinion:

In Re the Paternity of Maria E. Duran: Baltasar Regalado v. Maria E. Duran and First National Bank of Valparaiso, et al.  Case No. 64A03-0702-JV-66

This matter involved both a paternity proceeding and an estate administration.  The estate was of the biological father of a daughter who had previously been adopted by the parents of her biological mother.  The daughter sought to obtain a determination that she was the sole heir of her father’s estate.  In the paternity action, the trial court granted the daughter’s petition and found that the father was indeed her biological father.  The trial court in the estate matter, however, concluded that the daughter was not entitled to inherit from her biological father’s estate pursuant to Indiana Code § 29-1-2-8. This section provides, in part, that:

For all purposes of intestate succession, including succession by, through, or from a person, both lineal and collateral, an adopted child shall be treated as a natural child of the child‘s adopting parents, and the child shall cease to be treated as a child of the natural parents and of any previous adopting parents.

The Court of Appeals affirmed.  The basis for the daughter’s claim rested on the argument that because she had been adopted by persons who are related to her within the sixth degree, she was entitled to inherit through both her biological mother and father.  The argument was predicated on the third sentence of Indiana Code § 29-1-2-8 which provides that:

In addition, if a person who is related to a child within the sixth degree adopts such child, such child shall upon the occasion of each death in the child‘s family have the right of inheritance through the child‘s natural parents or adopting parents, whichever is greater in value in each case.

The Court of Appeals first reviewed the history of this statutory provision as well as early decisions involving this provision including the decision of Earle v. Indiana National Bank of Indianapolis decided by the Indiana Supreme Court in 1965.  In Earle, a brother of the deceased had been adopted by the sister of his natural father.  As such, the Court concluded that if the brother was treated as a brother of the children of his natural father, then this would also result in him being treated as a child of his natural father in violation of the statute.  The Court of Appeals concluded that the provision at issue in this case had been added to avoid unintentional disinheritance like that found in Earle.  The provision, however, did not create a new rule that expands an adopted child’s right to again inherit from their natural parents.

The Court of Appeals also addressed several other issues including whether Indiana or Illinois law controlled the estate.  The Court concluded that because Indiana was the only place that the biological father had a residence, was domiciled at death, and had property, Indiana was the appropriate place and the appropriate law for the administration of his estate.  In reaching this conclusion, the Court noted that there was no evidence that the biological father owned any real estate and that his personal property “is subject to the law that governs the person of the owner. . . . [When such owner dies] it is not the law of the country in which the property is but the law of the country of which he is subject that will regulate the disposition of such property.” (Quoting 4 Daniel R. Gordon et al., Henry’s Indiana Probate Law and Practice at § 28.01 at 28-6 (2004).

The opinion was handed down on January 30, 2009 and a full text copy of the opinion can be found here for those that may be interested in reading this decision.