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Court of Wills, Estates & Probate

The following articles were written by former Probate Judge Merri Rudd.

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Inheritance Rights of Adopted Children

10/17/2002
11:21 AM
Merri Rudd

appeared October 17, 2002, Albuquerque Journal, Business Outlook
Reprinted with permission 

Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.


Q: I gave up a child for adoption 38 years ago. Five years ago, I was contacted by this young man because he was able to get the adoption records unsealed. He found me and wanted to obtain some medical history on my family and that of his father's family. Do I have a financial obligation to him or do I need to make a new will if I wish to have him included or excluded? This discovery has caused some problems in our family and I would like to know what to expect.

According to New Mexico law, "An adopted individual is the child of his adopting parent or parents and not of his natural parents...." Most state laws treat adopted children as blood relatives of their adopting parents and as strangers to their natural parents.

New Mexico's law is different if a child is adopted by the new spouse of the child's natural parent. "The adoption of a child by the spouse of either natural parent has no effect on … the right of the child or a descendant of the child to inherit from or through the other natural parent," states New Mexico law.

Suppose Ruslyn is the natural child of Bert and Julia, who divorce. Julia marries Mark, who adopts Ruslyn. If all of the parents involved died without a valid will, under New Mexico law, Ruslyn could inherit from Julia and Mark, as well as from Bert.

If Bert does not want this to happen, he should prepare a will that states his intention to disinherit Ruslyn. This example of stepparent adoption is the one exception to the general rule that adopted children lose their inheritance rights from their blood parents.

Back to your situation--do you have a financial obligation to your son, who was adopted by strangers many years ago? No. If you want to include him as a beneficiary of your estate (and you have no legal obligation to do so), you would need to make a new will (or an amendment, called a codicil, to your old will) that states your wishes. If you choose, you could also put a clause in your will that specifically excludes him. Though not required by law, such language would make your intent clear.

© 2002, Merri Rudd & Albuquerque Journal, All Rights Reserved
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