Washington Elder Law Practice Report (#12) / Probate and intestate succession meet adoption

February 19, 2014

health-care-lawThis is #12 in a continuing series of Washington Elder Law Practice Reports.

The Washington probate statutes on intestate succession may be difficult to apply in  some specific cases. A precise knowledge must be obtained of the relationships of all potential heirs of the Deceased. Further, all such heirs must receive appropriate notice.

A 2001 case illustrates the types of issues that can develop (In re Estate of Fleming, 143 Wash.2d 412, 21 P.3d 281).

The following discussion covers some of the highlights and significance of this case. (More background may be found in Mitchell and Mitchell, Washington Elder Law and Practice: Basic to Advanced, volume 26 of Washington Practice.)

In the present case, an issue arose as to whether a mother and half-brother of the Deceased could claim to be heirs after the mother had given up the child for adoption.

The mother had previously “permanently terminated (the)…parent-child relationship” for purposes of the adoption.

But the child was never adopted.

A court order was entered permanently terminating all “rights and interests” of the mother in and to the child.

The Personal Representative argued that the mother and half-brother could not inherit under the circumstances.

The Supreme Court of Washington reviewed the adoption statutes that were in place at the time of adoption, and the statutes that were current at the time regarding intestate succession.

The Court ruled that the adoption order terminated all legal rights of the mother.

The Court also ruled that the statutory reference to “parent”, while previously broadly construed, was to be narrowly construed to apply to legal parental rights.

In the probate context, it is essential to understand how all legal relationships will determine intestate distributions, and the definitions of heirs.

This case emphasizes that even relationships that start out seeming to be obvious may raise debatable issues. Attorneys need to check for any such issues that are raised by intestate succession. And attorneys may also use such issues to encourage clients to prepare Wills.

Elder law practice in Washington is discussed by Cheryl and Ferd Mitchell in volumes 26 and 26A of Washington Practice (Washington Elder Law and Practice and the associated Elder Law Handbook). Probate practice is covered in volume 26B, and also introduced in volume 26.