Adult adoption is now able to occur in South Australia. In an earlier blog post, we discussed the process to apply for adult adoption.
You may be wondering why one would consider adopting an adult, or being adopted as an adult, in the first place?
One of the main reasons a family may consider adult adoption is the effect it has on estate planning.
How the new Adoption Act Amendments affects estate planning for 'blended families'
A 'blended family' is a family where one or both people in a couple have children from a previous relationship.
Estate planning for blended families is often complicated for three reasons:
- Providing for all family members: couples need to consider providing for each other and any children that they may have together, as well as any children they each may have from a previous relationship.
- The law of survivorship: The law of survivorship states that where any two people jointly own an asset , that asset passes to the survivor of them upon the death of the other person.
- The Inheritance (Family Provision) Act 1972: The Inheritance Act sets out that adult step children have no claim against the estate of their step parent.
A blended family scenario:
Bob has an adult child called Olivia. Bob married Judy when Olivia was 5 years old, and Judy has been a mother figure to Olivia for most of her life. Bob and Judy have purchased assets in joint names including their house, car and investments. They also have joint bank accounts.
When considering the law of survivorship, if Bob was to die before Judy, all his assets would be passed onto Judy. As the survivor, Judy has no obligation at law to make any provision for Olivia, and Olivia has no standing to challenge that under the Inheritance Act.
There are several ways in which a good Wills and Estate Planning Lawyer can work around these limitations and create estate planning which is 'fair' to both the couple and the children in a blended family.
Why adult adoption could be considered when Estate Planning
With the passing of the Adoption (Review) Amendment Act 2016 (SA) recent amendments to the Adoption Act 1988 create a new option which previously did not exist, namely the adoption of adult children.
The changes appear in section 10A of the Adoption Act and set out that:
The Court can order the adoption of an adult step child where a significant parent to child relationship existed before that stepchild attained the age of 18 years and the adoption is sought by the step child and the step parent. The process also includes the requirement that all potentially affected parties are heard by the Court, including the biological parents of the step child to be adopted.
Why the amendments to the Adoption Act are important to estate planning
The reason why the amendments to the Adoption Act are important to estate planning is, when looking at the above scenario, by Judy adopting Olivia, Olivia can now avoid the restrictions which would have otherwise been imposed on her by the Inheritance Act.
Prior to the amendments to the Adoption Act, if Bob died before Judy and everything jointly owned between them passed to Judy, then Olivia could not contest the Will of Judy if excluded from it. This is because Olivia was not considered a 'child' of Judy.
Once Olivia is adopted, for the purposes of the Inheritance Act, she becomes a child of Judy and can now contest Judy's Will if Judy decides to exclude Olivia from it. That change no doubt gives considerable comfort to both Bob and Olivia and is a valuable consideration in estate planning for the entire blended family.
It is worth noting that this estate planning strategy can only be applied in a very limited set of circumstances, such as the scenario mentioned above. There may also be other unintended consequences to adoption.
When a step child is adopted, what happens to their relationship with their biological parents?
Any step child who is adopted by a step parent (whether as a child or as an adult) loses the original parent and child relationship with their biological parent, which includes the right to be included in that biological parent’s Will.
Adult adoption isn’t the only option
It is important to obtain legal advice before considering adult adoption, so speak to our Family Law team about whether adult adoption is right for you.
If you have a blended family, adult adoption isn’t the only option. Speak to our Wills and Estates team to work out the best option for your family.