Double inheritance for adopted children
An adopted child may inherit not only the share of the estate left by their biological mother but also that of their adoptive mother
In its ruling of 15 December 2021 (Case No.: 21 W 170/21), the Frankfurt Higher Regional Court ruled that an adopted child may inherit shares cumulatively from both the estate of their adoptive parents and that of their biological parents.
The resolution The facts of the case are as follows:
The widowed testator had died childless. She had two sisters who had predeceased her. When she died without having made a will, she had surviving nieces and nephews. One of the nephews was the biological child of one of the testator’s sisters. Following the latter’s death, the other sister had adopted the boy. After the testator’s death, the boy had applied for a certificate of inheritance, under which he was to receive 50% of the estate as a legal heir. The 50% would consist of 25% through the line of his biological mother and 25% through the line of his adoptive mother. The probate court agreed with this. The other nephews and nieces lodged an appeal.
The Probate Court had found as follows. With regard to the consequences under inheritance law of the adoption of the nephew by the sister of his biological mother, the order of succession is to be determined in accordance with the provisions applicable since 1 January 1977 and, in particular, in accordance with Section 1756(1) of the German Civil Code (BGB) (as amended). However, under this provision, an adoption by a relative would only result in the termination of the child’s family ties with his or her biological parents, but does not extend to other relatives of the second or third degree. The applicant therefore inherited from the deceased both as a descendant of his adoptive mother and through the kinship with his biological mother, which continued to exist in this respect.
The nephews and nieces had argued that the provisions of Sections 1754 et seq. of the German Civil Code (BGB) were not applicable.
The Frankfurt Higher Regional Court has now ruled on this matter. It dismissed the appeal against the probate court’s decision. The Probate Court was correct in deeming that the facts required for the issue of the certificate of inheritance had been established. The nephew is entitled to 25% of the estate in each instance and has thus been appointed as an heir in several lines of succession following the testator’s death.
Under sections 1757 and 1763 of the Civil Code (BGB), old version, no family relationship was established between the adopted child and the adoptive parent’s relatives (section 1763 BGB, old version), but only with the adoptive parent (adoptive mother or adoptive father) themselves (Section 1757 of the BGB, old version). The adoption left the family ties with the adopted child’s biological relatives unaffected (Section 1767 of the BGB).
Accordingly, the nephew was related to the testator only through his predeceased biological mother (Section 1767 of the German Civil Code (BGB)), but not in so far as the testator was a sister – and thus a relative (Section 1763 of the BGB, old version) – of his adoptive mother. Accordingly, the nephew would only have become an heir through his biological mother. This is because, insofar as the testator was also a relative of his adoptive mother, Section 1763 of the BGB (old version) precluded a relationship of kinship mediated through the adoptive parent.
However, the nephew’s right to inherit must be regarded as if he had been adopted only after the entry into force of Sections 1755, 1756 and 1925(4) of the German Civil Code (BGB) (as amended).
Pursuant to Article 12(2)(1), first sentence, of the Adoption Act (AdoptG), the following has applied to the adoption of minors since the Act came into force on 1 January 1977, if the adopted child was still a minor on 1 January 1977, the provisions on the adoption of minors, as amended by the AdoptG, shall apply to legal situations arising after that date.
The nephew was born in 1960 and was therefore still a minor in 1997. This means that, according to Section 1927, first sentence, of the German Civil Code (BGB) into several branches and therefore also was appointed to inherit several shares of the estate of the deceased. The share of the estate inherited from his adoptive mother was determined in accordance with section 1754(1) of the German Civil Code (BGB). The share of the estate inherited from his biological mother was determined in accordance with section 1756 of the German Civil Code (BGB) (as amended).
It is true that Section 1756(1) of the German Civil Code (BGB) constitutes an exception, and exceptions must, as a general rule, be interpreted narrowly. However, this must be done within the context of the purpose of the exception. The purpose of Section 1756(1), first sentence, of the German Civil Code (BGB) is to maintain the family relationship with the family of origin, insofar as the direct family relationship with the biological parent is not affected. The fact that the predecease of the biological parent may also confer on an adopted child the right to inherit a share of the estate belonging to the biological parents’ family is consistent with this purpose.
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