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Virginia law on who is considered heir in a will in process of filing probate, specifically children from previous marriage.

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Rose of Sharon

New member
What is the name of your state? Virginia

Here is the situation. In the process of filing probate. There are children from a previous marriage. These children were given up for adoption by the biological father. The biological mother's new husband (stepfather) adopted them and children's last name was changed to his last name. Biological father gave up complete rights. The will of the biological father specifically states that no parts of his estate are to go to these previous children. All is to go to his current wife. Do these children from the previous marriage have any rights to his estate given that the stepfather adopted them, the biological father gave up all legal rights and also specifically excluded the children from his Will?

Are these same said children considered heirs in the process of filing probate? Do they need to be listed as heirs?

What is the code in Virginia law that addresses this issue so that I can read it as well?

Thank you so much!

 


Just Blue

Senior Member
What is the name of your state? Virginia

Here is the situation. In the process of filing probate. There are children from a previous marriage. These children were given up for adoption by the biological father. The biological mother's new husband (stepfather) adopted them and children's last name was changed to his last name. Biological father gave up complete rights. The will of the biological father specifically states that no parts of his estate are to go to these previous children. All is to go to his current wife. Do these children from the previous marriage have any rights to his estate given that the stepfather adopted them, the biological father gave up all legal rights and also specifically excluded the children from his Will?

Are these same said children considered heirs in the process of filing probate? Do they need to be listed as heirs?

What is the code in Virginia law that addresses this issue so that I can read it as well?

Thank you so much!
Your question should be in the Probate Forum...

With that said...Who are you in this situation?
 

Zigner

Senior Member, Non-Attorney
One is generally allowed to specifically exclude others from his/her own will.
 

adjusterjack

Senior Member
The will of the biological father specifically states that no parts of his estate are to go to these previous children. All is to go to his current wife. Do these children from the previous marriage have any rights to his estate
Stop right there and the answer is "no."

The rest of the sentence, starting with the word "given" is completely irrelevant.

I am the daughter (but not one of the excluded children from previous marriage).
Then why are you asking? Is one or all of those children claiming a share? If yes, just have the estate's lawyer tell them to pound sand. He knows the law. You don't have to go online trying to have strangers look it up for you.
 

Taxing Matters

Overtaxed Member
No child has a right to inherit from his/her parents. That means if the biological father had a valid will that specifically excluded them from inheriting anything then they should take nothing, assuming they are adults. However, in Virginia, when a child is adopted by the spouse of a biological parent, as in this case, that adoption does NOT cut off the legal relationship of the other biological parent. Specifically, Virginia law states:

1. An adopted person is the child of an adopting parent and not of the biological parents, except that adoption of a child by the spouse of a biological parent has no effect on the relationship between the child and either biological parent.
Va. Code § 64.2-102(1)(bolding added).

This means that when the children were adopted by the new husband of the biological mother the kids nevertheless also remained legally children of the biological father, too. As a result, if the biological father had no will or if his will was determined invalid, those kids would still stand in line to get an intestate share of the father's estate. This was in fact the result in a case where a daughter of the decedent was adopted by her mother's new husband under Pennsylvania law but the decedent was domiciled in Virginia at the time of his death. The Court held that Virginia recognizes the Pennsylvania adoption under the full faith and credit clause, but for purposes of determining who inherits from the decedent's estate Virginia law applies, not Pennsylvania law, because the decedent was domiciled in Virginia when he died. Applying the Virginia statute I quoted above, the Court held that the daughter was an heir to the decedent's estate and would take an intestate share since he had no will. Specifically, the court held:

Thus, because this court is duty-bound to recognize the status of a child adopted in Pennsylvania as a lawful determination and because this Court must apply the Virginia descent and distribution laws to Mr. Edwards' estate, this Court must reach the conclusion that Carmen Davida Cash is an heir-at-law of Dennis Freeland Edwards, (a domiciliary of the Commonwealth of Virginia at the time of his death), for purposes of the distribution of all of Mr. Edwards' personal property and any real property owned by Mr. Edwards in Virginia at the time of his death.
In re Edwards, 77 Va. Cir. 351 (2009).

Because of this, the adopted kids should be notified of the estate proceedings like any other child of the decedent. But again, if the will is valid and expressly cuts them out, they should still walk away with nothing.
 

Taxing Matters

Overtaxed Member
Stop right there and the answer is "no."
In a lot of states, you'd be right. Many states exclude an adopted child from inheriting from the biological parent whose rights were cut off by the adoption. But not all of them do that. And as you can see from my previous reply, Virginia is one of those states.
 

Rose of Sharon

New member
Thank you for the replies. The Will is valid and specifically exclude those children. So why do those children that were excluded need to be listed as heirs during probate? Why dig up old past and potentially create "issues?"
 

Zigner

Senior Member, Non-Attorney
Thank you for the replies. The Will is valid and specifically exclude those children. So why do those children that were excluded need to be listed as heirs during probate? Why dig up old past and potentially create "issues?"
Because they are the decedent's children and should be notified according to state law.
 

Taxing Matters

Overtaxed Member
Thank you for the replies. The Will is valid and specifically exclude those children. So why do those children that were excluded need to be listed as heirs during probate? Why dig up old past and potentially create "issues?"
Because all the heirs at law (which are those would would stand to inherit if there was no will) must be notified regardless of whether there is a will or not. See Virginia Code § 64.2-508(A)(2). Since the adopted kids are, for purposes of probate, still considered his kids as explained in my previous reply, they are heirs at law and Virginia law requires that they be notified.
 

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