When Adoption Cuts Off Grandparents: A Problem Lawyers Miss
By Joel Bernstein
Joel Bernstein is a retired estate planning lawyer from Lexington, Massachusetts who prefers gardening to writing, but shares his thoughts on rainy days.
Professor Jeffrey Pennell discovered something important that most lawyers miss. When someone gets adopted, they can lose the right to inherit from their birth grandparents. This happens even when those grandparents love them and want to leave them money.
Professor Pennell wrote about this in 2009 in an article called "It's Not Your Father's Buick, Anymore."¹ He is perhaps the most famous estate planning attorney in America and edited the main textbook on estate planning that started at Harvard Law School.
The Old Rule Was Unfair
Before the 1950s, adopted children faced an unfair rule called "stranger-to-the-adoption." Under this rule, when grandparents adopted a child, that child couldn't inherit from the grandparents' other relatives. The law treated the adopted child as a stranger to the wider family.
The 1950s changed this. New laws said adopted children should be treated exactly like children born into the family. They could inherit from adoptive parents, grandparents, aunts, uncles, and everyone else.
This was a big improvement. But it created a new problem.
The New Problem
When you get adopted, the law treats your birth parents as if they don't exist anymore. The adoptive parents replace them completely. This means you lose your legal connection to your birth family, including your birth grandparents.
Most people don't know this happens. Neither do most grandparents.
A Real Example
Professor Pennell gives this example: A mom and dad die in a car crash. The mom's sister adopts their child. This sounds like a kind thing to do.
But here's what happens. The child loses legal ties to the dad's family. If the dad's father (the child's grandfather) has a will that leaves money "to my grandchildren," this child might not get anything. The law no longer considers them a grandchild.
The grandfather doesn't know this happened. He still loves his grandchild. But his will won't work the way he intended.
Professor Pennell calls this "an unintended and thoroughly inappropriate result."
It Can Be Even Worse
If someone unrelated to either parent adopts the child, the child loses inheritance rights from both sides of the family. All the grandparents, aunts, uncles, and cousins on both sides are cut off legally.
This happens even though the families still love the child. Even though grandparents may have saved money to leave to this grandchild. Even though nobody intended this result.
The Step-Parent Exception
There is one exception. When a mom or dad remarries and the new spouse adopts the children, some states let the children keep both families. Professor Pennell calls this "triple-dipping" because the children can inherit from mom, dad, and step-parent.
But even this has problems. Under many state laws, the child can inherit from the birth father. But if the child dies first, the birth father can't inherit anything back. It only works one way.
Adult Adoption
Adult adoption makes things more complicated. Sometimes adults adopt other adults for estate planning reasons. For example, a single person might adopt their partner's adult child.
When this happens, the adopted adult loses inheritance rights from their birth grandparents. If a grandfather wrote his will 20 years ago saying "I leave my estate to my grandchildren," the adopted grandchild might not be covered anymore.
You Can't Undo Adoption
Professor Pennell points out that adoption is permanent. He calls it "a bell that cannot be un-rung."
If you get divorced, the marriage ends. But if you adopt someone, they're your child forever. You can't change your mind later, even if you made a mistake.
What Grandparents Should Do
The best solution is for grandparents to name grandchildren specifically in their wills. They should say: "This person is my grandchild even if they get adopted by someone else."
For example: "I leave my estate to my grandchildren, including Emily Johnson, who I consider my grandchild regardless of any adoption."
But most grandparents don't know they need to do this. They don't know that adoption can cut off their grandchildren.
What Lawyers Should Do
Professor Pennell says lawyers aren't doing their job. They should warn people before any adoption that the adopted person will lose inheritance rights from birth grandparents.
They should also help grandparents update their wills when grandchildren get adopted.
But Professor Pennell found that "few drafters appear to make special provisions" to protect natural grandparents. Most lawyers just ignore this problem.
Why Modern Families Face This More
Families today are more complicated than in the past. There's more divorce. More remarriage. More blended families. More step-parent adoptions. More adult adoptions.
But the law still assumes families stay simple and stable. It forces people to choose between new family and old family. You can't usually keep both.
Professor Pennell points out: "It is easier to get away from a spouse than it is from that spouse's child." If you marry someone and adopt their children, you can divorce the spouse. But you can't "divorce" the adopted children. They're yours forever.
What Needs to Change
Professor Pennell's article is a wake-up call to lawyers. He wants them to:
Warn clients before adoption. Explain that adoption will cut off birth family inheritance rights.
Help families update documents. When a grandchild gets adopted, help grandparents fix their wills immediately.
Support better laws. States should pass laws that let people keep both families instead of forcing them to choose.
Why This Matters
Adoption is usually wonderful. It creates families and gives children homes and love. But it has legal side effects that can hurt people who didn't do anything wrong.
Birth grandparents lose grandchildren they love. Adopted people lose inheritance from family members who wanted to help them. And most people don't know this is happening until it's too late.
The 1950s laws fixed one problem (letting adopted kids inherit from adoptive grandparents) but created another problem (cutting adopted kids off from birth grandparents).
Professor Pennell's article title says it all: "It's Not Your Father's Buick, Anymore." Estate planning needs to change for modern families. Families have changed. Laws need to catch up.
What I Learned
Reading Professor Pennell's article, I realize I probably didn't warn my own clients enough about this problem when I was practicing law.
When someone wanted to do an adoption, I focused on the good parts. The new family relationship. The easier inheritance. The legal protections.
But did I warn them about losing their birth grandparents' inheritance? Did I tell them to make sure those grandparents updated their wills? Probably not as often as I should have.
That's what Professor Pennell is trying to change.
The Bottom Line
If you're thinking about adoption, ask about inheritance rights. Make sure you understand what you might lose from your birth family.
If you're a grandparent and your grandchild gets adopted, update your will right away. Name that grandchild specifically and say adoption doesn't change anything.
If you're a lawyer doing estate planning, read Professor Pennell's article. It should be required reading. Stop missing this issue. Protect grandparents. Warn people what they're giving up.
Because families matter. Love matters. And the law should reflect both, not force people to choose between them.
¹ Jeffrey N. Pennell, It's Not Your Father's Buick, Anymore: Estate Planning for the Next Generation(s) of Clients, Chapter 13, 2009 Institute on Estate Planning (2009).