In most circumstances, inheritance planning is relatively straightforward, particularly where you want to leave your property to your surviving children. Passing down property to children is generally an uncomplicated process and easily accomplished.
Yet, there are various issues that may complicate the inheritance of children and consequently your inheritance planning. In this post, I will discuss the inheritance of children and some of the issues that may arise in nontraditional or unusual situations.
As I discussed in more detail in a previous post, Arkansas law assumes that a child unmentioned in a will was left out unintentionally by the testator. Consequently, such an unmentioned child will inherit what he or she would have had the testator died without a will.
Disinheriting a child, therefore, requires that the will specifically mention the child and state that the child—or class of children or children in general—are not to inherit.
Inheritance of Adopted Children
For purposes of inheritance, Arkansas considers adopted children the children of their adopted parents. Consequently, they will be treated the same as natural born children for inheritance purposes.
The other side to this is that they cannot inherit from their natural parents once adopted with the sole exception that children adopted by the spouse of a natural parent may still inherit from their other natural parent, so long as that parent retains parental rights. So, the adoption of a child by a stepfather does not necessarily bar that child from also inheriting from his or her natural father.
Inheritance rights go both ways in this regard. In a previous post, I pointed out that when an individual dies without a spouse, children, or a will, that person’s parents will inherit. In this situation, an individual’s adopted parents are considered that person’s parents. Natural parents cannot inherit through a child that has been adopted by someone else.
Again, the exception to this rule is where a stepparent adopts a child. In such a situation, the other natural parent may still inherit, though this exception only applies where the natural parent retains parental rights.
On this note, it is important to recognize that adoption is irreversible. Once it is done, it is done. So, when performing your inheritance planning, it is important to recognize the potential effects of adoption on your estate plan.
Sometimes adoptions are performed for the sole purpose of inheritance planning. One particularly odd situation, justifying a future post of its own, can arise in the setting of adult adoptions. On occasion, individuals, particularly individuals with large estates, have adopted spouses or significant others to ensure their inheritance rights.
This has struck many people as just plain creepy. Consequently, Arkansas does not recognize adult adoption of a spouse or any other individual with whom the adopting parent has a sexual relationship. Some jurisdictions, however, do recognize such adoptions, so it may be an issue in areas outside the state.
Posthumous children can present their own issues. As a general rule of thumb, a child born within 280 days of a deceased husband’s death is presumed to be the child of the deceased husband, though this is rebuttable.
The most controversial situations arise where children are born by virtue of a deceased husband’s frozen sperm or by frozen embryos. Modern technology allows a man to father children years after his death. States and jurisdictions differ on this, and resolving the matter for purposes of federal benefits is a difficult issue.
At this time, Arkansas does not recognize inheritance rights for posthumous children where the onset of pregnancy occurs after the father’s death. For a detailed analysis of Arkansas law on this subject, click here.
Inheritance planning becomes a little more complicated where nonmarital children are involved. Children born out of wedlock—traditionally referred to as illegitimate children—can still inherit through their biological father. In fact, nonmarital children have as much inheritance rights as marital children.
Establishing paternity, however, can be difficult. Children born in wedlock are presumed to be the children of the husband—even though that is unfortunately not always the case—but nonmarital children must establish paternity.
For inheritance purposes, claims of paternity in Arkansas must be filed within 180 days of the beginning of probate proceedings. All evidence of paternity must be included in that filing. This creates a tight timeframe for gathering the necessary evidence, particularly where evidence of paternity had not been previously gathered.
Another method of inheritance planning takes the form of the advancement. An advancement occurs when an individual while living gives a gift to an intended will beneficiary that is meant to count against that individual’s eventual inheritance.
For there to be an advancement, there must be a writing contemporaneous with the gift that is signed by the giver that specifically says that it is an advancement or a writing by the recipient acknowledging the gift to be an advancement.
If such a writing exists, the gift will reduce the inheritance of the recipient. Without such a writing, however, it is simply a gift and will have no effect on the distribution of the decedent’s estate after death.
Inheritance of Siblings
While related more to intestate succession than specific inheritance planning, it is worth pointing out that a half-sibling is treated the same as a full-blood sibling. So, if an individual dies without a will and has no children, spouse, or living parents—or has a will that simply leaves his or her property to “my brothers and sisters”—half-siblings will inherit the same as full-blood siblings.