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90_HB1186
755 ILCS 5/2-2 from Ch. 110 1/2, par. 2-2
755 ILCS 5/2-4 from Ch. 110 1/2, par. 2-4
760 ILCS 30/1 from Ch. 40, par. 1652
Amends the Probate Act. Provides that an adopted child
who is adopted after attaining age 18 and who never resides
with the adopting parent before attaining that age is a child
but not a descendant of the adopting parent for the purpose
of inheriting from the adopting parent's kindred. Provides
that an adopted child is not a child or descendant of a
natural parent or a natural parent's kindred for purposes of
inheritance, unless certain conditions are met. Amends the
Instruments Regarding Adopted Children Act. Provides that,
in determining the property rights of any person under a
nontestamentary instrument, an adopted child's relationship
to his or her adopting and natural parents shall be governed
by specified provisions of the Probate Act (and deletes
current language regarding the rights of an adopted child
under an instrument).
LRB9002673WHmg
LRB9002673WHmg
1 AN ACT in relation to rights and remedies.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Probate Act of 1975 is amended by
5 changing Sections 2-2 and 2-4 as follows:
6 (755 ILCS 5/2-2) (from Ch. 110 1/2, par. 2-2)
7 Sec. 2-2. Illegitimates.) The intestate real and
8 personal estate of a resident decedent who was illegitimate
9 at the time of death and the intestate real estate in this
10 State of a nonresident decedent who was illegitimate at the
11 time of death, after all just claims against his estate are
12 fully paid, descends and shall be distributed as follows:
13 (a) If there is a surviving spouse and also a descendant
14 of the decedent: 1/2 of the entire estate to the surviving
15 spouse and 1/2 to the decedent's descendants per stirpes.
16 (b) If there is no surviving spouse but a descendant of
17 the decedent: the entire estate to the decedent's
18 descendants per stirpes.
19 (c) If there is a surviving spouse but no descendant of
20 the decedent: the entire estate to the surviving spouse.
21 (d) If there is no surviving spouse or descendant but
22 the mother or a descendant of the mother of the decedent:
23 the entire estate to the mother and her descendants, allowing
24 1/2 to the mother and 1/2 to her descendants per stirpes.
25 (e) If there is no surviving spouse, descendant, mother
26 or descendant of the mother of the decedent, but a maternal
27 grandparent or descendant of a maternal grandparent of the
28 decedent: the entire estate to the decedent's maternal
29 grandparents in equal parts, or to the survivor of them, or
30 if there is none surviving, to their descendants per stirpes.
31 (f) If there is no surviving spouse, descendant, mother,
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1 descendant of the mother, maternal grandparent or descendant
2 of a maternal grandparent of the decedent: the entire estate
3 to the decedent's maternal great-grandparents in equal parts
4 or to the survivor of them, or if there is none surviving, to
5 their descendants per stirpes.
6 (g) If there is no surviving spouse, descendant, mother,
7 descendant of the mother, maternal grandparent, descendant of
8 a maternal grandparent, maternal great-grandparent or
9 descendant of a maternal great-grandparent of the decedent:
10 the entire estate in equal parts to the nearest kindred of
11 the mother of the decedent in equal degree (computing by the
12 rules of the civil law) and without representation.
13 (h) If there is no surviving spouse or mother of the
14 decedent and no known kindred of the mother of the decedent:
15 the real estate escheats to the county in which it is
16 located; the personal estate physically located within this
17 State and the personal estate physically located or held
18 outside this State which is the subject of ancillary
19 administration within this State escheats to the county of
20 which the decedent was a resident or, if the decedent was not
21 a resident of this State, to the county in which it is
22 located; all other personal property of the decedent of
23 every class and character, wherever situate, or the proceeds
24 thereof, shall escheat to this State and be delivered to the
25 Director of Financial Institutions of this State pursuant to
26 the Uniform Disposition of Unclaimed Property Act.
27 An illegitimate person is heir of his mother and of any
28 maternal ancestor and of any person from whom his mother
29 might have inherited, if living; and the descendants of an
30 illegitimate person shall represent such person and take by
31 descent any estate which the parent would have taken, if
32 living. If a decedent has acknowledged paternity of an
33 illegitimate person or if during his lifetime or after his
34 death a decedent has been adjudged to be the father of an
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1 illegitimate person, that person is heir of his father and of
2 any paternal ancestor and of any person from whom his father
3 might have inherited, if living; and the descendants of an
4 illegitimate person shall represent that person and take by
5 descent any estate which the parent would have taken, if
6 living. If during his lifetime the decedent was adjudged to
7 be the father of an illegitimate person by a court of
8 competent jurisdiction, an authenticated copy of the judgment
9 is sufficient proof of the paternity; but in all other cases
10 paternity must be proved by clear and convincing evidence. A
11 person who was illegitimate whose parents intermarry and who
12 is acknowledged by the father as the father's child is
13 legitimate. After an illegitimate person is adopted, that
14 person's relationship to his or her adopting and natural
15 parents shall be governed by Section 2-4 of this Act. For
16 purposes of inheritance, the changes made by this amendatory
17 Act of 1997 apply to all decedents who die on or after
18 January 1, 1998. For the purpose of determining the property
19 rights of any person under any instrument, the changes made
20 by this amendatory Act of 1997 apply to all instruments
21 executed on or after January 1, 1998.
22 (Source: P.A. 81-400.)
23 (755 ILCS 5/2-4) (from Ch. 110 1/2, par. 2-4)
24 Sec. 2-4. Adopted child and adopting parent.
25 (a) An adopted child is a descendant of the adopting
26 parent for purposes of inheritance from the adopting parent
27 and from the lineal and collateral kindred of the adopting
28 parent and for the purpose of determining the property rights
29 of any person under any instrument, unless the adopted child
30 is adopted after attaining the age of 18 years and the child
31 never resided with the adopting parent before attaining the
32 age of 18 years, in which case the adopted child is a child
33 of the adopting parent but is not a descendant of the
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1 adopting parent for the purposes of inheriting from the
2 lineal or collateral kindred of the adopting parent. An
3 adopted child and the descendants of the child who is related
4 to a decedent through more than one line of relationship
5 shall be entitled only to the share based on the relationship
6 which entitles the child or descendant to the largest share.
7 The share to which the child or descendant is not entitled
8 shall be distributed in the same manner as if the child or
9 descendant never existed. For purposes of inheritance, the
10 changes made by this amendatory Act of 1997 apply to all
11 decedents who die on or after January 1, 1998. For the
12 purpose of determining the property rights of any person
13 under any instrument, the changes made by this amendatory Act
14 of 1997 apply to all instruments executed on or after January
15 1, 1998. For such purposes, an adopted child also is a
16 descendant of both natural parents when the adopting parent
17 is the spouse of a natural parent.
18 (b) An adopting parent and the lineal and collateral
19 kindred of the adopting parent shall inherit property from an
20 adopted child to the exclusion of the natural parent and the
21 lineal and collateral kindred of the natural parent in the
22 same manner as though the adopted child were a natural child
23 of the adopting parent, except that the natural parent and
24 the lineal or collateral kindred of the natural parent shall
25 take from the child and the child's kindred the property that
26 the child has taken from or through the natural parent or the
27 lineal or collateral kindred of the natural parent by gift,
28 by will or under intestate laws.
29 (c) For purposes of inheritance from the child and his
30 or her kindred (1) the person who at the time of the adoption
31 is the spouse of an adopting parent is an adopting parent and
32 (2) a child is adopted when the child has been or is declared
33 by any court to have been adopted or has been or is declared
34 or assumed to be the adopted child of the testator or grantor
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1 in any instrument bequeathing or giving property to the
2 child.
3 (d) For purposes of inheritance from or through a
4 natural parent and for determining the property rights of any
5 person under any instrument, an adopted child is not a child
6 of a natural parent, nor is the child a descendant of a
7 natural parent or of any lineal or collateral kindred of a
8 natural parent, unless one or more of the following
9 conditions apply:
10 (1) The child is adopted by a descendant or a
11 spouse of a descendant of a great-grandparent of the
12 child, in which case the adopted child is a child of both
13 natural parents.
14 (2) A natural parent of the adopted child died
15 before the child was adopted, in which case the adopted
16 child is a child of that deceased parent and an heir of
17 the lineal and collateral kindred of that deceased
18 parent.
19 (3) The contrary intent is demonstrated by the
20 terms of the instrument by clear and convincing evidence.
21 An heir of an adopted child who, by reason of this
22 subsection (d), is not a child of a natural parent is also
23 not an heir of that natural parent or of the lineal or
24 collateral kindred of that natural parent. A fiduciary who
25 has actual knowledge that a person has been adopted, but who
26 has no actual knowledge that any of paragraphs (1), (2), or
27 (3) of this subsection apply to the adoption, shall have no
28 liability for any action taken or omitted in good faith on
29 the assumption that the person is not a descendant or heir of
30 the natural parent. The preceding sentence is intended to
31 affect only the liability of the fiduciary and shall not
32 affect the property rights of any person.
33 For purposes of inheritance, the changes made by this
34 amendatory Act of 1997 apply to all decedents who die on or
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1 after January 1, 1998. For the purpose of determining the
2 property rights of any person under any instrument, the
3 changes made by this amendatory Act of 1997 apply to all
4 instruments executed on or after January 1, 1998. If an
5 adopted child is related by blood to the adopting parent, the
6 adopted child and his or her descendants shall take property
7 from the estate of the adopting parent only as an adopted
8 child or descendants of an adopted child and not as relatives
9 by blood. For the purpose of determining the property rights
10 of any person under any instrument executed before, on or
11 after September 1, 1989, an adopted child is a descendant of
12 both natural parents when the adopting parent is the spouse
13 of a natural parent, unless the contrary intent is
14 demonstrated by the terms of the instrument by clear and
15 convincing evidence.
16 (e) For the purpose of determining the property rights
17 of any person under any instrument executed on or after
18 September 1, 1955, an adopted child is deemed a child born to
19 the adopting parent unless the contrary intent is
20 demonstrated by the terms of the instrument by clear and
21 convincing evidence.
22 (f) After September 30, 1989, a child adopted at any
23 time before or after that date is deemed a child born to the
24 adopting parent for the purpose of determining the property
25 rights of any person under any instrument executed before
26 September 1, 1955, unless one or more of the following
27 conditions applies:
28 (1) The intent to exclude such child is
29 demonstrated by the terms of the instrument by clear and
30 convincing evidence.
31 (2) An adopting parent of an adopted child, in the
32 belief that the adopted child would not take property
33 under an instrument executed before September 1, 1955,
34 acted to substantially benefit such adopted child when
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1 compared to the benefits conferred by such parent on the
2 child or children born to the adopting parent. For
3 purposes of this paragraph:
4 (i) "Acted" means that the adopting parent
5 made one or more gifts during life requiring the
6 filing of a federal gift tax return or at death
7 (including gifts which take effect at death), or
8 exercised or failed to exercise powers of
9 appointment or other legal rights, or acted or
10 failed to act in any other way.
11 (ii) Any action which substantially benefits
12 the adopted child shall be presumed to have been
13 made in such a belief unless a contrary intent is
14 demonstrated by clear and convincing evidence.
15 (g) No fiduciary or other person shall be liable to any
16 other person for any action taken or benefit received prior
17 to October 1, 1989, under any instrument executed before
18 September 1, 1955, that was based on a good faith
19 interpretation of Illinois law regarding the right of adopted
20 children to take property under such an instrument.
21 (h) No fiduciary under any instrument executed before
22 September 1, 1955, shall have any obligation to determine
23 whether any adopted child has become a taker under such
24 instrument due to the application of subsection (f) unless
25 such fiduciary has received, on or before the "notice date",
26 as defined herein, written evidence that such adopted child
27 has become a taker of property. A fiduciary who has received
28 such written evidence shall determine in good faith whether
29 or not any of the conditions specified in subsection (f)
30 exists but shall have no obligation to inquire further into
31 whether such adopted child is a taker of property pursuant to
32 such subsection. Such written evidence shall include a sworn
33 statement by the adopted child or his or her parent or
34 guardian that such child is adopted and to the best of the
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1 knowledge and belief of such adopted child or such parent or
2 guardian, none of the conditions specified in such subsection
3 exists. The "notice date" shall be the later of February 1,
4 1990, or the expiration of 90 days after the date on which
5 the adopted child becomes a taker of property pursuant to the
6 terms of any instrument executed before September 1, 1955.
7 (i) A fiduciary shall advise all persons known to him or
8 her to be subject to these provisions of the existence of the
9 right to commence a judicial proceeding to prevent the
10 adopted child from being a taker of property under the
11 instrument.
12 (Source: P.A. 86-606; 86-842; 86-1028.)
13 Section 10. The Instruments Regarding Adopted Children
14 Act is amended by changing Section 1 as follows:
15 (760 ILCS 30/1) (from Ch. 40, par. 1652)
16 Sec. 1. Property rights. (a) For the purpose of
17 determining the property rights of any person under any
18 nontestamentary instrument, an adopted child's relationship
19 to his or her adopting and natural parents shall be governed
20 by Section 2-4 of the Probate Act of 1975. For the purpose of
21 determining the property rights of any person under any
22 nontestamentary instrument, the changes made by this
23 amendatory Act of 1997 apply to all nontestamentary
24 instruments executed on or after January 1, 1998. executed on
25 or after September 1, 1955, an adopted child is deemed a
26 child born to the adopting parent unless the contrary intent
27 is demonstrated by the terms of the instrument by clear and
28 convincing evidence.
29 (b) After September 30, 1989, a child adopted at any
30 time before or after that date is deemed a child born to the
31 adopting parent for the purpose of determining the property
32 rights of any person under any instrument executed before
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1 September 1, 1955, unless one or more of the following
2 conditions applies:
3 (1) The intent to exclude such child is demonstrated by
4 the terms of the instrument by clear and convincing evidence.
5 (2) An adopting parent of an adopted child, in the
6 belief that the adopted child would not take property under
7 an instrument executed before September 1, 1955, acted to
8 substantially benefit such adopted child when compared to the
9 benefits conferred by such parent on the child or children
10 born to the adopting parent. For purposes of this paragraph:
11 (i) "Acted" means that the adopting parent made one or
12 more gifts during life requiring the filing of a federal gift
13 tax return or at death (including gifts which take effect at
14 death), or exercised or failed to exercise powers of
15 appointment or other legal rights, or acted or failed to act
16 in any other way.
17 (ii) Any action which substantially benefits the adopted
18 child shall be presumed to have been made in such a belief
19 unless a contrary intent is demonstrated by clear and
20 convincing evidence.
21 (c) No fiduciary or other person shall be liable to any
22 other person for any action taken or benefit received prior
23 to October 1, 1989, under any instrument executed before
24 September 1, 1955, that was based on a good faith
25 interpretation of Illinois law regarding the rights of
26 adopted children to take property under such an instrument.
27 (d) No fiduciary under any instrument executed before
28 September 1, 1955, shall have any obligation to determine
29 whether any adopted child has become a taker under such
30 instrument due to the application of subsection (b) unless
31 such fiduciary has received, on or before the "notice date"
32 (as defined herein), written evidence that such adopted child
33 has become a taker of property. A fiduciary who has received
34 such written evidence shall determine in good faith whether
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1 or not any of the conditions specified in subsection (b)
2 exists but shall have no obligation to inquire further into
3 whether such adopted child is a taker of property pursuant to
4 such subsection. Such written evidence shall include a sworn
5 statement by the adopted child or his or her parent or
6 guardian that such child is adopted and to the best of the
7 knowledge and belief of such adopted child or such parent or
8 guardian, none of the conditions specified in such subsection
9 exists. The "notice date" shall be the later of February 1,
10 1990, or the expiration of 90 days after the date on which
11 the adopted child becomes a taker of property pursuant to the
12 terms of any instrument executed before September 1, 1955.
13 (e) A fiduciary shall advise all persons known to him or
14 her to be subject to these provisions of the existence of the
15 right to commence a judicial proceeding to prevent the
16 adopted child from being a taker of property under the
17 instrument.
18 (Source: P.A. 86-842.)