Wills with children adopted at birth

[whiteglovetest]

We will be doing wills soon and have 2 children together (married 25 years). DH has another child, now a man in his 30's who he has never met. The mum spilt with DH and she met and married someone else whilst pregnant. The child was adopted by the new man and has his name etc and was raised by him. (DH has never had any contact whatsoever and they ceased CM payments from DH after about 6 months after the child was born). I guess they wanted to cut ties. DH feels a lot of guilt but genuinely wanted the child to grow up in a stable family so just kept away.

So we have found out that he does know that DH is his (biol) father but hasn't tried to make any contact.

So my legal questions are - Does this man have a claim on DH's estate when he dies? Do you we need to include him in any way in the will (to avoid a claim)?

No, once adopted all claims cease. He will have a possible claim on his adopted father's estate.

Thanks! Now for the sticky part - we are assuming he was adopted. He has his father's name so I'm assuming that this would have to have taken place if DH is on the birth certificate?
(apologies for not being fully transparent)

when you are adopted all parental rights are severed with birth parents and you are legally the child of someone else so no is the answer though I am no expert ( but have an adopted child myself ).
it is a bit sad that your only worry is whether or not the son can claim money off you though imo. He will inherit from his father if circumstances allow obviously as he is his adopted father's legal son.

I have a friend who started using her step dad’s surname when still in primary school then changed it legally when she was of age to do it herself. Never adopted though.

If he wants to be sure that this child does not inherit, why doesn't he just make a will leaving everything to the 'children of the marriage' or even name them individually. This seems the easier solution then speculating on the other child's adoptive situation.

I'm an adopted-out child, I have no legal claim on my biological father's side (no rifts etc, it's just he died when I was 2, I was adopted after that). My only biological grandmother left me a small inheritance which I appreciated both for the gesture and the money. If my biological aunts and uncles want to leave me something they would have to name me.

As your DH feels some guilt, it might be nice to leave something? A personal item, not necessarily money, maybe a letter too. I got more curious about my biological family as I got older.

I don’t think he was adopted formally by the sounds of it. Your DH would have had to agree to relinquish parental rights and it’s a fairly big deal.

but gosh what an odd approach to this

you would know if he has been adopted as your husbands parental rights would have been severed. That's assuming he was on the birth certificate and had PR to start with. You need to see a solicitor imo. If he is legally the father then that could change everything.

Yes he has no clue. He's never spoken to her in over 30 years.

You're overthinking this - this is exactly what a will is for. In the UK no child automatically has a claim to their parent's estate. Your DH should just write who he wants to inherit in his will.

I would definitely get proper legal advice before proceeding with wills tbh.

Two separate issues. One children do not have a claim on estates unless either listed or you don't have a will. Secondly if your dh is on the original birth certificate, he would have needed to relinquish parental responsibility for the dc to be adopted so he would know.

He doesnt know if he is on the BC or not.

first step, I would order the birth certificate. Then you will know if DH is on it. If he isn’t, then fine. If he is, and he’s never signed away parental responsibilities, then he’s his legal father.

I'm not sure the concept of parental responsibility within unmarried couples existed in the same form as now, or indeed at all, 34 years ago.

My two were born in 92 and 94 and brought up by both of us 'Living Together as a Married Couple' but we never married.

Need to do Civil Partnership now though otherwise IHT will be an issue if I croak.

Well that's a bit of a drip feed! The advice is totally different for a legally adopted child against a child who just calls someone else dad.

If you are in England and Wales it would be unlikely he would have a claim, in Scotland he may do as you can't disinherited children.

If you really don't want his son to have anything then get legal advice on the wills. I'm shocked that a Dad wouldn't want to know either way if he has been adopted legally.

I do apologise for the drip feed.

This is what I was thinking. This government website has some information about parental responsibility. https://www.gov.uk/parental-rights-responsibilities/who-has-parental-responsibility

The obvious thing to do is to spell out which children he wants to leave his estate to. If you get a solicitor to draw up the wills, this should be covered in your initial discussions.

Surely dh should have been consulted re adoption?

I would assume he was not officially adopted

Depends if he is even named on the birth certificate?

Does he remember whether he went with the mother to register the birth?

He has had no contact whatsoever with her since they split when she was pregnant. I'm assuming her husband would have gone with her.

How do you know it is the only worry? Maybe the OP just wants to focus one thread on one issue.

The child won’t have been adopted and your husband won’t be on the birth certificate so there is no cause for concern here.

He won’t be adopted because the mother married the other man whilst she was pregnant so there is a legal presumption that the other man is the father.

He won’t be on the birth certificate because as he wasn’t married to the mother he would have had to be present when the birth was registered or sign a legal declaration of paternity consenting to being registered as the father. They don’t just take the mother’s word for these things (and give the child inheritance rights) otherwise there would be loads of kids registered with King Charles or Bill Gates as their father!

If he had been registered as the father and if the child had later been adopted, he would have had to sign legal documentation relinquishing his rights and would have been entitled to attend the many adoption hearings.

As he knows he hasn’t done any of these things, there is no legal link between him and the child. I would however (to try to insulate against any future changes in the law) ensure he has a valid will disposing of his estate how he chooses. (Though if he genuinely does feel guilty about how he treated this man, a small bequest falling short of a share of the estate is always an option?)

He sounds a catch. Why has he had no contact?