Elf, the holiday spirit, and probate law

ElfLegs As Anchorman 2 opens this weekend it’s time remember another Will Ferrell movie I watch every year with the kids…Elf, the modern-day Christmas classic (the only other holiday movie I watch every year is Love Actually, but the kids only get to watch part of that!).  Bob Newhart’s in it so it’s got to be good!

Old-Fashioned Will And TestamentIn Elf, Buddy learns that he’s an elf by adoption and so he sets out to meet his biological family.  And this raises a potential legal issue – how does probate law deal with adopted children when there isn’t a will in place.  A will usually is the final word on who gets what after a death, although there are a variety of ways a will can be contested.  But all states have intestate laws, which provide standard rules on how a deceased person’s estate will be distributed if he or she died without a will in place.

One of the issues states address in dealing with intestacy is how to treat children (kids born after a will is written, step-parents, etc.).  And one question is what happens with children given up for adoption.  Can adopted children inherit from their biological and adoptive parents?  Can biological and/or adoptive parents inherit from children who are adopted (I can’t even think about what that question actually means).

ElfHatAs a general rule, once an adoption is finalized, the biological parent no longer has a legal relationship with the child.  Instead, after the final adoption decree, the adopted child is viewed by the law as if he or she had been born to the adopting parents.  So the child can inherit from the adoptive parents and the parents’ relatives (e.g., the adoptive grandparents, siblings, etc.) and vice versa.

While the general rule is therefore that adoption cuts off inheritance rights between biological parents and children who have been adopted by another family, there are exceptions to this rule.  For example, some states (from Maine to Alaska) allow inheritance rights to continue if it’s stated in the adoption decree.  Other states, big (Texas) and little (Rhode Island), say that an adoption will cut off the biological parents rights to inherit from an adopted child, but the child can still inherit from his biological parents.  The Child Welfare Information Gateway covers all of the exceptions to the general rule here.

Buddy bonded with both families in Elf and hopefully both families had proper estate planning advice.  So watch the movie this holiday season (and lobby for a Love Actually sequel – it could be awesome) and don’t worry about Buddy’s future.  Happy holidays!


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Jessica has been litigating business and IP disputes for the past decade. During that time, she’s dealt with clients, lawyers, and judges who have varying degrees of appreciation for the challenges of managing discovery in an electronic age. Until the fall of 2011, she was an attorney at a large, Texas-based law firm, where she represented clients in state and federal court nationwide. That fall, she made a long-desired move back to the Midwest and is now a partner at Hansen Reynolds Dickinson Crueger LLC, a litigation boutique based in Milwaukee, Wisconsin, where she continues to litigate while also consulting with business and law firms on e-discovery issues (before, during, and after litigation arises).