Are adopted children treated the same as natural children in regards to being beneficiaries/remainderman of trusts? In other words do they have the same rights if the trust document states the trust is to be split into equal shares amongst my issue per stirpes?
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The Editor, Mark Bernardin, is an attorney living in MA. Please send your suggestions or comments to: TheEditor@malawforum.com
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Adopted Beneficiaries/Remainderman of Trusts and Estates
The first step would be to review the trust document. The trust itself may answer the question by specifying the Grantor's/Donor's intent. Most well drafted trusts will include specific language on this issue. If the trust is silent on the matter, then the default rule is that adopted children are considered to be the children of the adoptive parents for all purposes. Further, the issue of the adopted child (issue is everyone "downstream") are considered to be the issue of the adoptive parent. And the tricky one for planning purposes - the adopted child (and such child's issue) is considered to be the issue of the adoptive parent's ancestors.
One significant caveat: Massachusetts recently enacted the Uniform Trust Code (MUTC). That is a new set of laws governing how we interpret trust instruments (and is not to be confused with the Massachusetts Uniform Probate Code which recently became effective). I am not entirely sure of the effective date of the new law, and I have not reviewed the new law for the treatment of adopted children. I expect, however, that the law on this issue remains unchanged. I will post a follow-up answer in the event there have been any changes to the law. Hope that helps.
Attorney Peter Bernardin