Adopted children, as full members of their families, have rights of inheritance from their adoptive parents. But these rights vary according to the type of adoption : simple, or plenary. What are the differences between both ?
Simple adoption and plenary adoption in France : what are the rules of inheritance rights ?
Adoption is a bond of filiation established by a legal act between a person of age or a minor (the adopted person) and another person (the adopter). In French law, there are two types of adoption : simple adoption and plenary adoption.
Simple adoption leaves legal ties between the adopter and his or her family of origin. Therefore, the adopted person keeps his or her inheritance rights. At the same time, the adopted person acquires the same inheritance rights from his adoptive parents as the other biological children. He has therefore a double right to inherit : the first from his biological parents, the second from his adoptive parents. However, the adopted person is not a mandatory heir with respect to his adoptive grandparents.
On the contrary, plenary adoption breaks all legal ties between the adopted person and his or her family of origin. The adopted person has a new filiation, which replaces the original one. A new birth certificate is established and the child is registered on the family record book of the adopter. As a result, he or she will be entitled to the succession of his or her adoptive parents under the same conditions as a non-adopted child, and will be excluded from the succession of his or her biological family.
Inheritance tax and benefits in the case of a simple adoption
In theory, the legal bond resulting from a simple adoption is not taken into account in the calculation of transfer duties. The adoptee must therefore pay an inheritance tax that amounts to 60% of the value of the property transmitted.
However, the March 14, 2016 law provides for several cases in which the adopted person will be able to benefit from the same rights as the biological children of the adopter (that’s article 786 of the French general tax code):
- child from a first marriage of the adopter’s spouse,
- adopted minor at the death of the adopter,
- adopted adult who has received uninterrupted care from the adopter for 5 years during his minority or 10 years during his minority and majority.
If the adopted person meets one of these conditions, he or she will be eligible for the tax allowances that are reserved for biological children.
The inheritance consequences of plenary adoption
Plenary adoption, by creating a new legal relationship between the adopter and the adoptee, gives the latter the same rights and obligations as a legitimate child. The child adopted under plenary adoption benefits from the same inheritance rights as the biological children of the adopter: he or she becomes a mandatory heir of his/her adoptive family, and of their ascendants (the adoptive grandparents).
If the adopted child is entitled to the succession of his adoptive parents, he is at the same time excluded from the succession of his family of origin.
When the adopter dies, the adopted child is subject to the same tax rate as the biological children. The sums transmitted will therefore be taxed according to the French tax rates, ranging from 5% to 45% depending on the share due to each heir. The rates are applied on a fractional basis.
Settlement of inheritances can be tough and complex, especially when legal issues related to adoption are involved. In such cases, it is important to be surrounded and legally advised. Do not hesitate to talk to a family law attorney for advice.