This article deals with the assessment of the inheritance rights of children adopted abroad in Germany. This refers to cases in which the testator dies in Germany and has adopted a child abroad. For the assessment of the right of inheritance, the decisive factors are whether it is a minor or an adult adoption, whether the child was adopted in Germany or abroad and, if it was adopted abroad, what effects the adoption has in the country concerned. However, there is also a possibility for the testator to influence the inheritance rights of the adopted children. This will be dealt with last. The following text will focus on the adoption of minors.
What are the effects of adoption in Germany?
In Germany, a distinction is made between the adoption of minors and the adoption of adults. In the case of the adoption of a minor, the child is treated in the same way as biological children. It is treated as a natural child and has a right of inheritance from the adopting person or couple, see Section 1754 BGB. The right of inheritance also extends to other relatives of the adopting testator. An adopted minor child can therefore also inherit from the parents of the adopting person. This is known as a full adoption.
In the case of adult adoption, the parentage law ties to the previous parents do not expire. There is no connection to the relatives of the adopter under the law of descent. This means that in the case of adult adoption, there is also no right of inheritance vis-à-vis the relatives of the adopter. The adopted child can therefore not inherit from the parents of the adopter. This is a limited adoption, see § 1770 BGB.
What are the effects of an adoption abroad?
From a German perspective, the effects of an intercountry adoption are assessed in accordance with Article 22 EGBGB. Accordingly, the effects of foreign adoptions are governed by the law of the state in which the adoptee has his or her habitual residence. There are various adoption effects and forms of adoption abroad.
There are limited adoptions and full adoptions. The cases in which the adoption effects are not as far-reaching as the German regulations are problematic. In order for the adopted children to receive inheritance rights, further procedural steps are required, which will be explained later.
How can a weak foreign adoption be converted into a strong German adoption?
If there was a court decision on the adoption abroad, recognition of this decision can be applied for in Germany. This has the advantage that German courts will confirm the adoption. However, recognition is not possible if no court decision was made abroad, but the adoption was only carried out on the basis of a private law contract.
However, mere recognition cannot convert a weak foreign adoption into a full adoption. A conversion is possible under the Adoption Effect Act.
What options does the testator have to put children adopted abroad in a better position?
Insofar as German inheritance law applies, the testator can stipulate that adopted children - regardless of the effects of the adoption - are to be treated as natural children, Article 22 Paragraph 3 Sentence 1 EGBGB. This also has advantages under tax law, as descendants of the testator benefit from higher tax allowances.
What applies if foreign inheritance law applies?
Since the EuErbVO came into force, inheritance law has been adapted to the the deceased's habitual residence at the time of death.. Therefore, testators can also inherit according to a law that they did not actually want. In this respect, there may be cases in which a foreign inheritance law applies and the role of the adopted child is unclear.
In these cases, it is necessary to clarify how foreign law treats adopted children. There is also the question of how foreign adoptions are assessed under this law. And finally, there are some procedural pitfalls along the way. For this reason, it is strongly advisable to seek legal advice. We are happy to support you and have access to a network of partner lawyers in the EU in order to provide you with the best possible support.