Question: Dear lawyers of PL & Partners Law Firm, I have a question as follows:
In 2008, my parents adopted a child. On August 25, 2021, my mother died due to the COVID-19 pandemic. Because she died quite suddenly, she did not leave a will. Now, the adopted child of my parents wants to divide the estate left by my mother. So I have this question, is an adopted child entitled to inherit the estate as a natural child? Could you help me find the answer? I’m looking forward to hearing from you. Thank you.
Answer: PL & Partners would like to thank you for trusting and sending this question to us. For your question, we would like to reply as follows:
Because your mother died without leaving a will, the estate will be divided according to the law.
The division of inheritance at law shall comply with the principle: The heirs of the same level shall be entitled to equal shares of the estate. The heirs at a lower level shall be entitled to inherit the estate where there are no heirs at a higher level because such heirs have died, or because they are not entitled to inherit, have been deprived of the right to inherit, or have disclaimed the right to inherit.
Pursuant to Article 651 of the Civil Code 2015, heirs at law are categorized in the following order of priority:
- The first level of heirs comprises spouses, biological parents, adoptive parents, natural child and adopted children of the deceased;
- The second level of heirs comprises grandparents and siblings of the deceased; and biological grandchildren;
- The third level of heirs comprises biological great-grandparents of the deceased, biological uncles and aunts of the deceased, and biological nephews and nieces of the deceased.
Thereby, according to the above regulation, it can be seen that natural children and adopted children are both in the first level of heirs. This means that adopted children and natural children shall enjoy equal shares of the estate in order to ensure fairness and non-discrimination in the family.
The current law only recognizes a person as an “adopted child” when the adoption meets the provisions of the law and is registered at a competent authority. Specifically:
- An adoptive person and an adopted child have to fully meet the following conditions:
- An adoptive person must have full civil act capacity; be 20 years old or older than the adopted child; have the conditions of health, finance, and accommodation for assuring the nurture, education, and care for the adopted child; have good ethical qualities.
- At the time of adoption, an adopted child must be under 16 years old; In case an adopted child is from 16 to under 18 years old, he/she shall only be adopted by stepfather, stepmother, natural aunt, or natural uncle.
- Domestic adoption shall be registered at the commune-level People’s Committee where the adopted child or adoptive person permanently resides. Meanwhile, international adoption shall be registered at the provincial-level Department of Justice.
Besides, in case an adoption arises in reality but has not been registered before January 1, 2011, it shall be registered from January 01, 2011, to December 31, 2015, if it meets the following conditions:
a/ Involved parties meet all adoption conditions prescribed by law at the time of arising of their adoption relationships;
b/ Parent-child relationships still exist and both parties are still alive by the time the Law on Adoption 2010 takes effect;
c/ Caring, nurturing, and educating between the adoptive parents and adopted child like between natural parents and child.
At the time an adoption certificate is issued by the competent authority, the relationship between the adoptive and adopted persons is officially established. When the adoptive persons die, the adopted child is entitled to inheritance according to the law.
Thus, compared to your case, you did not mention whether your mother’s adoption was registered at a competent authority and complied with the law or not. Therefore, this adopted child shall only inherit the estate from your mother when your parents registered for adoption at a competent authority and obtained an adoption certificate. If the above conditions are not met, the relationship between the adoptive mother and the adopted child is not established and then the adopted child does not have the right to inherit the estate from the adoptive mother.
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