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Children are one of the most vulnerable groups in our society. Whilst it may be accepted by the community at large that children have legal rights in the realm of inheritance law, the implementation of those rights at a practical level can become quite complicated. This is especially the case given the complexities of the modern, blended family.

This article is written on the basis it is widely accepted that natural children have established rights in inheritance law.  It is not the purpose of this article to traverse those matters. Here we examine the legal principles shaping the inheritance rights of other types of “children” who may  also identify themselves to be a child of the relevant person.

The rights of a child born of reproductive technologies

Reproductive technologies can be of great assistance to those who are unable to conceive or gestate a child. However, these technologies complicate the concepts of who is the parent and who has the responsibility for a child born as the result of such technology.

Under New South Wales and Queensland legislation, when a woman undergoes a fertilisation procedure, which results in a child, the husband or partner of the woman is presumed to be the father of the child (if he consents to the procedure) and the donor is not identified as the child’s father. Similarly, where a woman produces a child through the use of another woman’s ovum, she is presumed to be the mother, and the woman who produced the ovum is presumed not to be the mother of that child.

Accordingly, the “parents” who procure the pregnancy and birth of the child are the legal parents of that child, and the biological donor/s is not considered the parent of the child. Inheritance rights follow accordingly, in that the child has rights in relation to the estate of the parents who undergo and consent to the procedure, yet they do not have inheritance rights in relation to the estate of the donor/s.

The rights of an adopted child

An adopted child has exactly the same rights in relation to the estate of her or his adoptive parents as a biological child. However, once an adoption has taken place, a child who has been adopted has no right to claim provision from the estate of her or his biological parents. Say for instance in a situation where Johnny is the biological son of Pam and Mary adopted Johnny. Johnny only has inheritance rights in relation to Mary’s estate and Johnny no longer has inheritance rights in relation to Pam’s estate.

Under the law, an adopted child ceases to be the child of the previous (biological) parents and their rights follow accordingly.

The rights of an illegitimate child

Once upon a time illegitimate children were provided with virtually no entitlements under inheritance law. Now, however, illegitimate children enjoy exactly the same rights as legitimate children. The relationship between a child and their parent is determined irrespective of whether the child’s mother and father are or have been married or in a spousal relationship.

The rights of a stepchild

It is not uncommon in today’s modern family for there to be a blend of stepparents and their stepchildren. The rights of stepchildren in inheritance law vary in each state.

In Queensland, for the purpose of eligibility to bring a claim on an estate, stepchildren are regarded the same as biological children. However, the definition of ‘stepchild’ is heavily qualified and can become complicated in its application.

The Queensland law stipulates that the relationship of stepchild and stepparent ceases to exist after the termination of the marriage (or spousal relationship) which created it, by divorce or separation. If the stepchild’s biological parent dies before the death of the stepparent, and the relationship between the stepchild’s biological parent and stepparent existed at the date of death, the relationship of stepchild and stepparent continues.

In New South Wales, for the purpose of eligibility to bring a claim on an estate, stepchildren do not share equal rights with biological children. Stepchildren are not automatically eligible to bring a claim on an estate in the same way that they are in Queensland. For a stepchild to be eligible in New South Wales they must demonstrate that they were wholly or partly dependent on the deceased person, and were at any time, a member of the same household of which the deceased person was a member.

Conclusion

Blended families with complex family structures that include one or more stepchildren, adopted children, illegitimate children, and/or children born of reproductive technologies are becoming increasingly common throughout Australia. Given the complexities of the law surrounding children’s rights in inheritance law, it is imperative you obtain the right advice whether planning for your children’s future, or bringing a claim on an estate.

Attwood Marshall Lawyers have a dedicated team of Wills & Estates lawyers that specialise in estate planning and estate litigation. Contact our Department Manager Donna Tolley on direct line 07 5506 8241 or freecall 1800 621 071 for a free initial consultation.

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Lucy McPherson

Lucy McPherson

  • Senior Associate
  • Estate Litigation
  • Direct line: 07 5506 8255
  • Mobile: 0400 230 522
Attwood Marshall Lawyers

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