Pennsylvania Family Law and Divorce
Lisa Marie Vari & Associates, P.C.

Can Adopted Children Take Under a Pennsylvania Will?

By: Lisa Marie Vari 

Decided by the Pennsylvania Supreme Court in 1972 and still good law today, the case of the Estate of Tafel, 296 A.2d 797 (Pa. 1972) defined the rights of adopted children to take as beneficiaries under a Pennsylvania Will. The Court specifically stated that if a Testator of a Pennsylvania Will makes a bequest or devise to a "child" or "children" other than the Testator's child or children, it is presumed that this bequest or devise includes children that were adopted, unless the Testator designates otherwise.

In the Tafel case, the testator created a Will which included a testamentary trust within the Will itself. The income of the trust was to be received by the testator's widow during her lifetime, and upon her death, the corpus of the trust was to be divided among the testator's four named children. Each named child was to receive the income during his/her life and upon their death, the corpus was to be passed to 'such his or her other children as may then be living and to the issue then living of such of them as may be dead.' The testator had one son and three daughters, all of which were living when the testator's widow passed away. Testator's son died in 1970, survived by his two adopted children. At the time of the testator's son's death, the testator's three daughters were still living. The issue in this case was whether or not the testator's son's adopted children would take under the Testator's Will.

Both of the children were adopted after the testator's death, which did not affect the Court's decision. The Court had to determine if these adopted children would be considered "children" of the testator's deceased son, allowing them to take a share of the testator's testamentary trust. The law before this case presumed that adopted children would be excluded from taking under the Will or testamentary trust in this situation. This case significantly re-defined the law in Pennsylvania, creating a presumption that the Testator meant to include adopted children unless he expresses otherwise in his Will.

The Court in Tafel also went into a historical discussion of the history of adoption laws in Pennsylvania. Interestingly, the first adoption law in Pennsylvania existed in 1855, and after this law was passed, the PA legislature spoke numerous times regarding the rights of adopted children to take a bequest or devise under a Pennsylvania Will and considered adopted children to have all the rights that biological children have to take under a Will. However, it was not until this case in 1972 that the Supreme Court finally had the rights of adopted children to take under a Will "set in stone."

Our adoption attorneys can assist you if you are interested in adopting, or our PA Wills attorneys can assist you in drafting a Will so that your adopted children are included and accounted for. Contact us at Lisa Marie Vari & Associates today!

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