Rights of “Children” Who are Not Formally Adopted to Probate and Non-Probate Assets in Tennessee

It happens that marriages occur, but children of one of the marrying spouses are not adopted by the other spouse. It also happens that these children are treated by the non-adopting spouse just like his or her own children despite never being formally adopted.  So, what are the rights of children in such situations to the assets of the man or woman who, for all practical purposes, became their mother or father, when that man or woman who was not their natural parent and who never officially adopted them passes away?

The answer to the above question depends on, at least, several factors. If the deceased non-natural parent died without a will and did not leave any assets via a joint account, payable on death or other account beneficiary designation (non-probate assets), then the never-adopted child is out of luck. Under Tennessee probate law, when a person dies without a will, the only children who may inherit are natural children and adopted children.  That’s it. No exceptions.

If, however, the non-natural parent who died left assets payable on death (non-probate assets) to his or her “children,” it is quite possible that a person the deceased considered and treated like a child, even though that person was never formally adopted, might share in those assets. In the case of In re Estate of Elrod (Tenn. Ct. App. 2015), that very outcome occurred.

In that case, the deceased, Mr. Elrod, married a second time and treated his second wife’s children as his own, though he never adopted them. As well, they treated him like a father.  When Mr. Elrod introduced his wife’s children to others, he always referred to them as his children.  When Mr. Elrod executed his will, he left his assets in equal shares to his one natural child and to his wife’s children (the children he treated as his own).

While he was alive, Mr. Elrod designated the beneficiary of his IRA as his wife, and, if she did not survive him, his “children.” Mr. Elrod’s wife predeceased him.  After Mr. Elrod died, his natural son took the position that the “children” designation meant only him.

The Court of Appeals affirmed the decision of the trial court that Mr. Elrod intended, by the use of the word “children,” to mean his natural child and his wife’s children. So, it held that those persons should share equally in the IRA funds.

If Mr. Elrod had not made the IRA designation that he did, then his IRA funds would have passed to his estate. If that would have occurred, then his wife’s children would have received an equal share of the IRA proceeds since Mr. Elrod had named them as equal beneficiaries with his son in his will.

If, however, Mr. Elrod had made no designation of beneficiaries to his IRA, and had died without a will, his wife’s children would have received none of the IRA proceeds.

What if Mr. Elrod had prepared a will that left his estate to his “children” equally? Although I cannot find a Tennessee case on point, I feel pretty confident that a court, under the circumstances of the Elrod case, would hold that Mr. Elrod’s wife’s children were entitled to share in the assets of his estate equally with his natural son.  In Tennessee probate litigation, our courts have said for many years that the primary purpose of a court in interpreting a will is to give effect to the intent of the testator. I believe that a Tennessee court would interpret the word “children” in Mr. Elrod’s hypothetical will just as that word, as used in Mr. Elrod’s IRA beneficiary designation form, was interpreted.

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