INCLUSION OF ADOPTEES IN CLASS GIFTS TO ISSUE: THE UNCERTAINTIES AND INCONGRUITIES OF PROBATE CODE SECTION 21115
David C. Nelson*
Testamentary instruments sometimes provide for a gift to a class comprised of the issue either of the transferor or of another person such as a child of the transferor. This type of class gift can take a variety of forms, including an immediate outright disposition, an immediate or subsequent income interest, an eventual remainder interest, or a gift over in default of lapsed or failed gifts. Where the instrument does not afford express guidance, a question can arise as to whether adoptees are included in such a class gift to issue.
Subject to an exception not relevant here, California’s intestate succession laws provide that any part of an intestate estate not passing to the decedent’s surviving spouse passes to "the issue of the decedent," if any.1 At least in this context, "issue" includes a "child," and "child" means someone who takes as a child under the laws of intestacy.2 In turn, a parent-child relationship is deemed to exist for this purpose between an adopted person and that person’s adoptive parent or parents.3 Thus, under California’s current intestate succession laws, "issue" includes adoptees.4 This uniform rule is clear, easy to apply, and, although some might disagree, at least arguably is rationally based on what a transferor presumably would intend.