Adoption and Inheritance in terms of the Intestate Succession Act

Adoption and Inheritance

Children are usually seen as the descendants of their parents. They are often also some of the first people to be named as the beneficiaries of a parent’s will, though they do not legally have a right to inherit. Minor children, however, are their parents’ responsibility, even in death, and even if a child is not named a beneficiary, he or she can, with the aid of their guardian, claim maintenance against a deceased parent’s estate. Such a claim receives a higher priority than those of named beneficiaries.  So, while South African law respects an individual’s freedom of testation some laws can restrain a testator’s exercise of this freedom.

But… what if an individual died without leaving a valid will or any other document containing testamentary provisions? And what if that individual has an adopted child?

Passing away without testamentary provisions

If a person passes away without a will it is said they die intestate, and his or her deceased estate is wound up according to the Intestate Succession Act 81 of 1987. This 5-page Act sets out exactly how a deceased estate is to be wound up in the absence of a will. If a will is present but a portion of the estate is not accounted for in the will, that portion is also wound up according to the Act.

The Act states that if a person “dies intestate, either wholly or in part, and

  • Is survived by a spouse, but not by a descendant, such a spouse shall inherit the intestate estate;
  • Is survived by a descendant, but not by a spouse, such descendant shall inherit the intestate estate.”

It further continues to detail the various possible individuals that could inherit the estate depending on who survives the deceased, from just one’s parents to descendants of one’s deceased mother, for example, who are only related to the deceased through her.

Adoption and the Intestate Succession Act

Once again, the Intestate Succession Act is very clear on what is to be done about and intestate deceased estate when the child is to inherit has been adopted:

“An adopted child shall be deemed

  • to be a descendant of his adoptive parent or parents;
  • not to be a descendant of his natural parents or parents, except in the case of a natural parent who is also the adoptive parent of that child or was, at the time of the adoption, married to the adoptive parent of the child.”

An adopted child thus has the right to inherit as any biological child would from their adoptive parents. They do not have the same right to inherit from their biological parents as they are legally no longer seen as their biological parents’ descendants.

Final thoughts

While the Intestate Succession Act stipulates how to wind up an intestate deceased estate, this situation only highlights why it is important to have a recent and valid will. It is the last expression of one’s wishes and as long as all the details of your will is legally enforceable, it can ensure that your last wishes are adhered to.

While an adopted child is no longer the descendant of his/her biological parents and cannot inherit according the Intestate Succession, they might still want him/her to inherit. If this is the case, they can state so in their will.

It is always a good idea to have your will drawn up by professionals, like AED Attorneys, that can advise you on the inclusion of important clauses and ensure that the will is accepted by the Master of the court so you don’t pass away intestate.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.

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