Legal Tip 158: Adopted Children and Wills

Adopted Children and Wills


The laws of adoption differs from state to state, and so does the laws of succession. So the following is a generalisation based on NSW law and you should seek specific legal advice.


A child that is adopted legally becomes a child of the adopted parents and is considered the same as a natural child under the law. The adopted child enjoys the full rights of inheritance that a natural child would enjoy. They would have a right to inherit on intestacy and a right to make a family provision claim for example.


The adopted child is legally no longer a child of the natural parents. This means they could not make a claim against the natural parent’s estate on intestacy or a family provision claim.


For NSW law see s 95 the Adoption Act 2000 ADOPTION ACT 2000 - SECT 95 General effect of adoption orders


When writing a will it would be a good idea, where you have adopted children, to explicitly state that when you refer to ‘my children’ that includes adopted children. If you want to distinguish between adopted and natural children you can, but just make sure the will is clear and not ambiguous.


If you wish to treat your adopted children differently or leave them out of your will you should keep in mind they could make a family provision claim to contest the will.


For superannuation purposes it is the same. Adopted children are children and are able to benefit from superannuation death benefit payments on the death of their adoptive parent.


See the definition of child under s 10 SIS Act
SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993 - SECT 10 Definitions


For the taxation of super benefits adopted children and treated the same as natural children. Section 995-I of the ITAA97 defines child so that the definition includes that of an adopted child. INCOME TAX ASSESSMENT ACT 1997 - SECT 995.1 Definitions (also includes step child, and child of the individual’s spouse).


To pre-empt the question, you can only adopt someone that is under the age of 18. S 24 Adoption Act 2000 (NSW). ADOPTION ACT 2000 - SECT 24 Who can be adopted?