Elder Law Report
Elder Law Report
Navigating Estate Planning: The Essential Role of Adoption and Estate Planning
Unlock the secrets of effective estate planning at the critical crossroads of adoption and elder law. Join us as we engage with Jane Dearwester from our Hendersonville office to unravel the complexities that could impact your family's future. Discover why legal adoption is crucial for ensuring adopted children are acknowledged as rightful heirs and navigate the challenging terrain of establishing paternity in North Carolina, especially for children born outside of marriage. We also dive into the specific needs of LGBTQ families, emphasizing the protective power of adoption decrees for non-biological parents.
Whether you're part of a traditional family setup or have a diverse family structure, this episode is a must-listen for anyone wanting to secure their legacy and provide peace of mind for their loved ones. Learn practical steps to include all intended beneficiaries in your estate plan and avoid potential legal hurdles. Don't leave your family's future to chance—reach out for a consultation by calling 888-999-6600 or visiting mcelderlaw.com/scheduling. Equip yourself with the knowledge to make informed decisions and ensure your estate planning aligns with your wishes.
I'm attorney Samantha Gordon with McIntyre Elder Law. Welcome to the Elder Law Report.
Jane Dearwester:Hi, I'm Jane Derwester. I'm based in our Hendersonville office and we're here today to talk about adoption and how that affects estate planning.
Samantha Gordon:Yeah, so specifically dealing with estate plans and adoption. So if we have individuals that come in and we're talking about an estate plan and we're going over, you know how many children do they have, do they have grandchildren? And then someone mentions to me that they have an adopted child Well, adopted can mean multiple things to multiple people. It can mean that you've taken in a child but maybe not legally adopted them, but so you do consider them your child, but under the law, if you do not have an estate plan in place, then they actually are not considered your heir at law. So really distinguishing between legal adoption and then, you know, taking in someone as your child two different things within the law, especially in our area of law. So if a child is legally adopted, then they are your heir at law and if they're not, then you want to ensure that you have an estate plan in place so they can be considered a beneficiary of your estate plan. That's really kind of the quick down and dirty of adoption, specifically for estate planning. And then we also run into sometimes a situation where we're opening up an estate for an individual doesn't have an estate plan and there is a child that you know comes into the picture and says, hey, I'm a biological child of this individual and I want to be included in the estate.
Samantha Gordon:Well, actually establishing paternity in North Carolina, there are specific steps that need to be done and just having a birth certificate where a father had signed that birth certificate establishing paternity does not mean that that individual automatically is considered a biological child of that father. There are specific rules and our laws that actually determine that. Even if, say, for example, this individual signed your birth certificate, they put themselves out to be your father your whole life, there has to be specific ways within our laws that actually establish paternity, unfortunately. So it's very important to know that. And by having an estate plan in place, this really avoids this whole establishing paternity and making sure that this individual is included within your estate. So, having an estate plan, you can have that person included in writing on paper and then they'll be able to benefit from your estate.
Samantha Gordon:So to establish paternity in North Carolina, there's three different ways. So the first way is there's some type of criminal prosecution of a parent for non-support of a child, so some type of order for child support to a civil action to establish paternity that had been brought on in. A court actually ruled that this individual is, in fact, the father, and then three is declaring the child legitimate. So that also is going to be in order from the court legitimizing that child as the individual, the child of that person. So making sure that if this does come into play, if you do have a child, that this is specifically also a child born out of wedlock.
Samantha Gordon:So and that is a very old term that North Carolina still uses it just means a child born out of a marriage. And so making sure that you know, if there is a situation, if we have a blended family, if there's a child that's not part of your current marriage, really ensuring that you have an estate plan that really is going to establish what you want to happen with your estate and include everybody that you want to have included and you know that can get really tricky within the estate planning world as well as the probate world. But then we also have recently it's become really relevant the LGBTQ community, jane, and really focusing on you know how can all that work, also within their state plan, if you know there's donors and same-sex marriages, and really making sure that you know those individuals protect themselves as well as their children.
Jane Dearwester:Yeah, yeah, definitely, and correct me if I'm wrong, but establishing paternity, I think, if I remember right, that has to be done during the father's lifetime, because we had a case come up. We actually had some people come in asking about it, but the woman't think we can do it. Now I don't think we can establish paternity, even though there was some DNA test or some kind of you know, medical tests that existed, the fact that the father had been passed away for over a decade. There was no way we could help this person. And certainly, going back to the LGBTQ issues, before same-sex marriage was legal in all 50 states, there were all kinds of very special considerations that same-sex couples had to go through, and now it's maybe a little bit easier, but there are still some issues that come up, particularly for the non-biological parent. So in a couple, most of the time, or sometimes not, the non-biological parent needs to get an official adoption decree so that they are legally the parent of this child and the birth certificate. Even though they may write the two individuals, even if they're married or not married, on the birth certificate, that's only a presumption of parentage. It is just not the same as a court order and that can come up on a variety of issues. Another issue that came up in this realm of LGBTQ estate planning was there are documents called a voluntary affidavit of parentage. There are also co-parenting agreements where you could spell out, basically by contract or by a written verified document, that these are our wishes and we treat this person as our child. But neither of those documents the voluntary affidavit of parentage or the co-parenting agreements neither have the same force and effect as a court order. So you want to get an adoption decree in place and once you have it in one state, thanks to full faith and credit of the US Constitution, that's going to be enforced in any state where you might move or travel.
Jane Dearwester:Another item for LGBTQ families a suggestion in a recent seminar I attended was to have written consent for medical treatment if the non-biological spouse is transferring the minor child out of state for medical treatment. That's just another thing to be heads up on, and it's why we ask so many questions in our consultations. We really want to know who your heirs are, who you want your heirs to be, even had a case last year that involved an adult adoption. So this woman was actually our client's ex-wife and after she and our client got divorced, his mother adopted her as an adult. Yes, it was very interesting case because she wanted mom wanted ex-wife to inherit and she thought that was the absolute best way to make sure she inherited.
Jane Dearwester:And guess what happened? We end up in litigation for about two years over all of it, and so it is a thing and it certainly solidifies inheritance. That's what the litigation was about, because she by law absolutely she was legally adopted. She was an heir at law, but, as you can imagine, our client was not so happy, since his ex-wife is now his sister and so, on that note, that was a very interesting, unusual case, but it really shows how adoption can affect your estate plan in some very interesting, unusual, maybe unpredictable ways.
Samantha Gordon:Definitely. Thanks, jane. Appreciate that If you have an estate plan in place and maybe you haven't considered this aspect or you don't have an estate plan in place at all you could definitely give us a call. We would love to discuss that with you. Our telephone number is 888-999-6600, or you can actually go to our website and schedule a consultation at mcelderlawcom slash scheduling. Thanks, jane. Thank you, bye, bye.