family law south africa

aging parents no adoption web

The short answer is no

A week or two ago, The Legal Advice Office got the following query:

 “Can you please assist with advice in this regard?

I have been raised as the only child by parents, who are not my biological parents. Although I regard them as my true parents, I was never formally adopted by them. They are both in ill-health and I don’t think they have a will. They don’t have much, but I am concerned that if they die, I will lose the possessions that they do have. Will I be able to inherit from them when they pass away even if I was never formally adopted?”

We advised her along these lines.

“The short answer is no; not unless you are named and inherit in terms of their will because; if you are not legally adopted and there is no valid will which bequeaths their estate to their nominated beneficiaries and they do not bequeath their estates, or part of them, to you, you will not be entitled to inherit.”

To inherit where there is no valid will; which is referred to as intestate succession; requires a child to be either the biological or adopted child of the parents. Adoption is the process whereby an adult assumes the parenting rights and responsibilities from the biological parents or legal guardians of a child who is under 18 years of age. Adoption is intended to effect a permanent change in the status of a child and must take place through a court order. Children who have been legally adopted in terms of our law are deemed to be the descendants of their adoptive parents, and cannot, therefore, in turn, be a descendant of their biological parents and inherit intestate from them.

An adopted child can, therefore, share in the estate of a deceased adoptive parent in the same way as a biological child, and will accordingly be able to inherit in terms of intestate succession should there be no will and his/her adoptive parents, therefore, die intestate.

We went on to say to her that “to address the question of whether growing up with parents is sufficient to entitle a person to inherit from them, even if you were never formally adopted, our courts have found that unless an adoption process has been completed, a child that is not the biological child of the parents cannot inherit intestate from them irrespective of whether the child has grown up with the parents or even had an adoption process underway.

Such a child will, however, remain a natural descendant of his/her biological parents and will be entitled to inherit intestate from such biological parents; but our courts have made it clear that he/she, the child, will not inherit intestate from the parents with whom they grew up. 

In your situation, where you have not been adopted, you would therefore not be able to inherit intestate from your parents should they pass away without a will. It would thus be appropriate to raise the issue of inheritance with them and if necessary have a will drafted that establishes your right to inherit from them.”

 Obviously; if there is a will; anyone can bequeath any part of their Estate to anyone they choose. That is their choice and it does not necessarily have to be a member of their family or their children.

Please visit our website at www.legaladviceoffice.co.za or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. and we will respond to your legal queries within 48 hours.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.legaladviceoffice.co.za

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Legal Advice Office

South Africa

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Phone: +27 (028) 316 2832
Email: info@legaladviceoffice.co.za

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