Historically, an adopted child could only inherit from their biological, and not their adoptive, parents. However, as the laws that govern an individual’s ability to inherit have changed with time, this is no longer the case.
Considering this, two questions concerning an adopted child’s right to inherit arise:
- Can an adopted child inherit from their biological parents?
- And how can an adopted child fight for inheritance from their biological parents?
This article will provide Queensland-specific answers to the above questions.
An Overview of the Right to Inherit in Australia as an Adopted Child:
As an adopted child, there are two primary considerations involved in determining your rights to inherit:
- the state or territory where the adoption took place; and
- the adoption laws that existed in that location at the time the adoption took place.
Can an adopted child inherit from their biological parents in Queensland?
Yes, but only if they are provided for in their biological parents’ final Will.
However, if they are excluded from the Will, then unfortunately they have no right to make a family provision application to try to obtain adequate provision from that parent. Applying the above considerations in the Queensland jurisdiction, children adopted in this state on or after 1 August 1965 cannot inherit from their biological parents, meaning that the law only allows an adopted child to inherit from their adoptive parents but not from their biological parents. In short, generally an adopted child cannot inherit from their biological parents in Queensland, if they were adopted on or after 1 August 1965, and excluded from their Will.
How the Law Operates:
In the eyes of the law (in Succession Law at least), when a child is adopted, they effectively cease being a child of their biological parent(s), and vice versa with the parent. As such, the adopted child loses their right to inherit from those biological parent(s). Naturally though, the adopted child will immediately garner rights to make a claim against their adopted parents’ estates, as if they were those parents’ biological child.
- An adopted child’s right to inherit is generally determined by the state or territory where their adoption took place, and the adoption laws that existed in that location at the time their adoption.
- In Queensland, an adopted child, who has been excluded from their biological parent’s Will has no right to inherit from that deceased estate, and has no legal recourse to fight for provision from it either.
Our team of lawyers provide clear and timely advice and services on all areas of Wills and Estates law Australia-wide. Given that the legislative requirements for the construction and content of Wills, their execution, probate and administration and more changes from jurisdiction to jurisdiction, it is highly beneficial to engage legal experts who are well-versed in these rules and regulations across all areas of Australia.
Contact one of our offices today to discuss any legal issues you may have from preparing Wills to challenging them.
By Steven Hodgson & Bernadette McShane