By Randy Ratliff
If you’re around my age or older, that song is probably now stuck in your head. Sorry, not sorry. It reminds me though, of a beautiful family that I met when I first moved to this area. One of the things that really endeared me to Brentwood was the high rate of adoption. I met several families comprised of kids from different nationalities and ethnic backgrounds and it confirmed my initial impression that this is an area of loving compassion.
In my practice, I’ve found that almost all estate planning lawyers now draft wills and trusts with language that includes adopted or children born after the creation of the document. This has not always been the case and occasionally I still see older documents that fail to reference these children. The prospect of a child being disinherited because of this oversight is heartbreaking. It is preventable.
Inheritance and traditional adoption are difficult enough. Unfortunately, the law also almost always lags technology. Older trusts or wills that predate both recent technological advances and the acceptance of adoption often prefer consanguinity (your ten-dollar lawyer word for the day). It means simply that the person creating the trust or will wanted his or her estate to pass to his or her own bloodline. That may have been fine in the 1920s or 30s.
Now, however, every year, thousands of children are born using assisted reproductive techniques. In situations where the birth mother is a surrogate, the child is often adopted. Other technological developments have also made using the bloodline requirement tricky. We’ve all read the stories about the fertility doctor that fathered hundreds of children. Turns out that when assisted reproduction initially became a viable option, it was not uncommon for physicians to enhance the chance of a successful pregnancy by adding sperm from additional donors, sometimes including themselves. As a result, genetic testing won’t necessarily resolve these issues and may, in fact, open up a can of worms.
Because prior to the 1970s estate planning documents often expressly omitted adoptees outright, there are trusts that exist today that were drafted generations ago that require careful examination of the language to determine who can and who cannot inherit. If a family has used multi-generational trust planning where the trust does not recognize adoption, that child may not be a beneficiary of that trust, even though that child is genetically related to the creator of the trust. Also, state laws vary, but some states require that a child live with the parent as a minor in order to inherit. Obviously, this can be problematic.
Fortunately, Tennessee has very strong decanting laws that offer one avenue of fixing these issues within older dynasty trusts. Whether or not to decant a trust is complex matter and includes tax consequences that must be considered, but it may provide a solution.
Still, there are legitimate reasons for limiting who may be a beneficiary under your estate plan and the types of adoptees to include. For example, you may not want to provide your son or daughter or grandchild the ability to circumvent your wishes by adopting the 55-year-old waitress down at the Waffle House. Thoughtful planning and careful drafting are a must.
The key takeaway here is that if you are one of the many families in our area that has been graced by adoption or assisted reproduction, you should make sure you have a lengthy discussion with your estate planning attorney about your options and your wishes and make sure your plan carries out your values.
Randy Ratliff, Esq. is a Brentwood Estate Planning Attorney and Certified Exit Planning Advisor.