An Adoptive Child’s Right to Inherit
by Kathi Mann Sandweiss
A child is born out of wedlock. His young parents agree to name him Dylan. They also agree that they dont love each other. They never loved each other. They are too young and there are too many problems and they decide not to marry. The mother later marries another young man who formally adopts Dylan.
Dylans biological father never marries and has no other children. He dies intestate in an accident and his parents come forward to claim the proceeds of the personal injury settlement. They claim that the adoption by the mothers husband severed the parent-child relationship between the decedent and Dylan, and that they are the decedents only heirs.
Technically, the childs grandparents are correct that, under Arizonas adoption laws, the parent-child relationship between their son and his child was severed by the adoption decree; that is, however, not dispositive as to the issue of inheritance under the Arizona Probate Code.
Moreover, Division One of the Court of Appeals1 recently resolved whatever tension previously existed between state adoption statutes and a recent change in probate law and concluded that an adopted child retains inheritance rights from both biological parents.
This article examines the conflict between the statutes, explains how the Court of Appeals decision gives effect to the legislative intent of the more recent probate statute and avoids rendering superfluous a portion of that statute.
The Laws of Intestate Succession Provide that
The Arizona Revised Probate Code provides that,
when there is no surviving spouse, the entire intestate estate
passes in the following order:
Adoption Severs the Parent-Child Relationship
Upon entry of the decree of adoption the relationship of parent and child between the adopted person and the persons who were his parents just prior to the decree of adoption shall be completely severed and all the legal rights, privileges, duties obligations and other legal consequences of the relationship shall cease to exist, including the right of inheritance, except that where the adoption is by the spouse of the childs parent, the relationship of the child to such parent shall remain unchanged by the decree of adoption.3
A.R.S. §14-2114(B) Expressly Provides
that Dylan Inherits From His Father
An adopted person is the child of that persons adopting parent or parents and not of the natural parents. Adoption of a child by the spouse of either natural parent has no effect on the relationship between the child and that natural parent or on the right of the child or a descendant of the child to inherit from or through the other natural parent.4
Thus, although the Adoption Statute purports to disinherit a child from his biological parent in the event of adoption, the Probate Code explicitly maintains the right of inheritance when a child is adopted by the spouse of a natural parent. The legislative history of the recent change in probate law, accepted rules of statutory construction, and a recent decision by Division One of the Court of Appeals, however, resolve any inconsistency between the two statutes.
History of A.R.S. §14-2114.
One of the more significant changes in the Uniform Probate Code was one in 1975 from "that" to "either" as the third to last word in the following subsection:
(1) an adopted person is the child of an
adopting parent and not of the natural parents except that
adoption of a child by the spouse of a natural parent has no
effect on the relationship between the child and either [that]
As the Comments explained, the change was recommended so that children who had been adopted by the spouse of a natural parent would not lose inheritance rights from any natural relatives.6 As a consequence of this change, the drafters noted that the child of a deceased father who has been adopted by the mothers new spouse would not cease to be "issue" of his father and would take a devise from one of his natural paternal grandparents in favor of the childs deceased father who predeceased the testator.7
The language of the recent Arizona law does not uniformly track the language of the revised UPC section above. Significantly, however, the comparable Arizona statute expressly provides that the adoption by the spouse of a natural parent does not affect the childs right to inherit from the other natural parent. This clear mandate is further supported by reference to the committee discussions and UPC comments.8 Thus, the history clearly shows that the Legislature did not intend that an adoption by the spouse of one natural parent would terminate the childs right to inherit from his or her other natural parent.9
The rules of statutory construction render a similar result. The primary principle of statutory interpretation is to determine and give effect to the legislatures intent.10 To do so, the Court first examines the statutory language.11 The Court interprets each word, phrase, and clause in each sentence in a statute so as to give each meaning and to avoid rendering any part void, inert, redundant or trivial.12
Strict application of A.R.S. §8-117 to Dylan would effectively void the clear terms of A.R.S. §14-2114(B) in favor of the older, conflicting, Adoption statutes. Such an application is untenable and contradicts established Arizona law.
When two statutes truly conflict, either the more recent or more specific controls.13 The Arizona Court of Appeals has consistently held that statutes relating to the same subject matter should be read in pari materia, both to determine legislative intent and to maintain harmony and avoid rendering any clause superfluous.14 Therefore, the Probate Code and the more recent and more specific statute must be interpreted to permit Dylan to inherit from his father, notwithstanding Dylans adoption by his mothers husband.15 There is no other reasonable interpretation of the Probate Code.
Nor is that interpretation vitiated by the older Adoption Statute. The legislature adopted A.R.S. §14-2114(B) of the Probate Code in 1994; the Adoption Statute has been in effect, unchanged, since 1970. Further, the Probate Code addresses the specific issue of inheritance from a natural parent, in the event of adoption by the other natural parents spouse. The Adoption Statute does not address the issue specifically. It appears to carve out an exception from the general rule of severance by adoption in the event of an adoption by a natural parents spouse, but only addresses the effect of the adoption on that natural parent. The Adoption Statute is silent as to the effect of an adoption by the spouse of a natural parent on the other natural parent. Thus, in the absence of A.R.S. §14-2114(B), the Adoption Statute may reasonably be construed to sever all relations between the child and the other natural parent, but the introduction of contrary language in §14-2114(B) points out an ambiguity. To give effect to both statutes, the terms of the more recent, specific statute must prevail on the narrow issue of a childs right to inherit from a natural parent, even after adoption by the other natural parents spouse.
When confronted with the factual scenario outlined at the beginning of this article, the judge ruled that pursuant to A.R.S. §14-2114(B), the child was entitled to inherit from his father under the laws of intestate succession, notwithstanding his adoption by his mothers spouse.
The parents appealed and argued that 1) as a matter of law, the 1992 adoption severed the father-child relationship as of the date of adoption; 2) the recent change in the Probate Code, A.R.S. §14-2114, does not expressly apply to adoptions before the effective date of the statute and does not, therefore, retroactively restore a parent-child relationship that was previously severed; and 3) if heirship is determined at the time of death, as the trial court ruled, unknown adopted children could come forward at any time and claim an intestate share of a biological parents estate. They wrote, "[w]ho knows how many men are out there who were never informed that they fathered a child."
Division One of the Court of Appeals held that adoption by a stepparent does not sever a childs inheritance rights from the biological parent. Affirming the trial courts grant of summary judgment, the Court disposed of the retroactivity argument and reconciled the two seemingly contradictory statutes.
Application of A.R.S. §14-2114 Does Not
An "heir" is one who survives the decedent. In Arizona, the person must survive the decedent by at least 120 hours for purposes of intestate succession.18 Logically, one cannot be an "heir" until someone else dies.19 Before a parent, for example, dies, his or her children have only a contingent interest in his estate. If A.R.S. §14-2114(B) were applied retroactively, it would apply to cases in which the decedent had already died before the statutes effective date, but would impair the heirs vested, substantive inheritance rights. The legislature is unlikely to take such a step, particularly because of this unfairness.20
The Court then found that A.R.S. §14-2114(B) would not retroactively apply, but would prospectively govern probate matters of any decedent who died after January 1, 1995. That interpretation is consistent with the statutory scheme, which provides that one is not an "heir" entitled to intestate succession until one has survived the decedent by at least 120 hours. It is consistent with established Arizona law, which provides that an heirs interest vests only upon death. It is also consistent with the majority view in other jurisdictions which hold that under the Uniform Probate Code (adopted in Arizona), the law at the date of the parents death, not that in effect at the time of adoption, controls.21
The Honorable Rudolph J. Gerber, writing for the Court of Appeals in Champagne v. Ryan, found the majority view "more logical." He concluded that "the logic of vesting requires the inheritance right to flow from the law existing at time of death rather than at the time of adoption."
The Champagne Court noted the general rules of statutory construction described earlier in this article, but its decision hinged on a slightly different assumption: that A.R.S. §§8-117(B) and 14-2114(B) "address in tandem different facets of adoption." The Court pointed out that §8-117(B) governs the childs legal relation to the non-severed biological parent, a relation which remains constant notwithstanding the adoption by a stepparent. Section 14-2114(B) governs the childs relationship with the other biological parent and provides that "the child does not lose the right to inherit from the biological parent whose parental rights were otherwise terminated by adoption. In a word, both statutes mean that an adopted child retains inheritance rights from both biological parents."
Kathi Mann Sandweiss is the head of the appellate department at Jaburg & Wilk, P.C.
1. Champagne v. Ryan, 1 CA-CV 96-0193
(filed December 3, 1996).