Monday, February 23, 2009

Question from Julian - Adoption and inheritance

I am writing a novel set in the 1580s. Could a married but childless man adopt an orphan and leave his estate to the child? What would happen if he subsequently had a son?

Thank you.

1 comment:

Anonymous said...

Adoption, in the modern sense of filing papers with a court and making the adoptee the legal child of the adopting parent, did not exist in Tudor England. It was a part of Roman law, which survived in some forms on the continent, but not a formalized part of English customary and statute law. Most adoption laws were not formulated until the 19th or early 20th century.

That said, there were mechanisms for informal adoption. I suppose it was entirely possible for a married couple to take in an orphan and to raise that orphan as their own. And there was also the possibility of gaining wardship over the orphan, if that orphan was otherwise heir to money or estates. Wardship was much like modern legal fostering, except the holder of the wardship had absolute control over any and all assets nominally held by the minor child.

Could the "adopted" child inherit from the "adopting" father? Depends. If the adopting father's wife survived him, she would be his legal heir. If the wife pre-deceased the adopting father, but the father had surviving male relatives of any kind, they would inherit. And if the adopting family subsequently had any children, male or female, they would inherit. Under English common law relating to inheritance, non-relatives (e.g., adopted children) inherited only if the deceased had virtually no living relatives. And even then, the adopted child could inherit only if their was a written will. Though I am sure it was still possible for the state to step in and void the will if large amounts of property were at stake.

In short, I think it is very unlikely that any orphan would inherit from his or her "adoptive" parents.