State inheritance laws cover surprise relatives

Marilyn Odendahl • modendahl@ibj.com

Technology may have uprooted the common wish for an easy inheritance.

Move over, dreams of a letter arriving from a lawyer informing the recipient a long-lost relative has died and bequeathed a tidy sum. Off-the-shelf DNA test kits and online genealogical searches are connecting previously unknown extended family members and sometimes alerting children their dad is actually not their biological father.

Could a claim to an estate be far behind?

Greg Duncan, partner at Bingham Greenebaum Doll LLP, expects technological advances such as commercial genetic testing will identify more relatives and bring questions about inheritance. But carefully drafted wills and estate plans can prevent surprises by including language that makes clear the assets are to go only to the known children of the married couple.

On the other hand, Duncan said, wills do not have to exclude. The couple could leave an inheritance to a child given up for adoption or, if a previously unknown offspring knocks on the door, the family could feel a moral obligation to give a piece of the estate even though there is no legal requirement.

Ironically, as technology is turning the task of locating lost relatives into practically an internet search, it is not simplifying the drafting of a will.

“I tell people all the time, it isn’t as easy as filling in the names on a form because you have to draft to protect against problems,” said Rodney Retzner, partner at Krieg DeVault LLP.

However, Retzner noted, in his experience the search for unknown relatives usually comes from pure motives. The family wants to find their cousins, aunts, uncles, siblings and parents out of love and affection, rather than angling for a financial benefit.

Unsealing records

In 2018, Indiana unsealed its adoption records to any Hoosier adopted before Jan. 1, 1994. The law, Senate Enrolled Act 91, was actually passed during the 2016 session of the Indiana General Assembly but did not take effect until two years later.

However, Indiana law already included provisions to handle any questions of rights to an inheritance. Under Indiana Code section 29-1-2-8, legally adopted children are considered the natural children of their adoptive parents and have no claim to their biological parents’ estates.

The law is different for children born out of wedlock. The descendant must establish paternity before being considered a child of the father and gaining an entitlement to any inheritance. Indiana Code section 29-1-2-7 sets strict time limits, allowing only children younger than 20 years old or born after their natural father has died to certify a biological relationship post-mortem.

Recently, Duncan said, his firm was contacted by someone who had not discovered he was adopted until after his adoptive parents had passed away. He had been going through family letters when he learned he had been privately adopted.

“I think people are going to get these questions over time more frequently as a result of the change in the law,” Duncan said of the statute that allows adoption records to be opened.

Families are changing, becoming more open, and estate plans are being adjusted accordingly.

Retzner recalled a couple writing their will to leave an inheritance to their grandson even though he had been adopted by another man. Their son had died after fathering the child out of wedlock. The mother had remarried, and her husband had adopted the grandson, but the grandparents had maintained a relationship with the family and left their son’s heir a portion of their estate.

Society wants change

In his practice, Retzner sees clients being more aware that unknown family relations could arrive. Occasionally, husbands wanting language in the will restricting the assets only to the children that are the product of the marriage can spur some uncomfortable conversations with their wives.

But Retzner has not seen any uptick in long-lost relatives actually showing up.

Duncan noted, as with the change in the adoption records, what society wants can drive the Legislature to act. Technology may help locate long-lost relatives, discover a biological father or bring to light unknown offspring. In turn, these events could reshape the definition of family and cause society to seek accommodating changes in the law.

“If enough people make a big policy push, Duncan said, “you could see the issue being addressed.”•

Originally published Indiana Lawyer.