Public Act 90-0237 of the 90th General Assembly
Public Act 90-0237
HB1186 Enrolled LRB9002673WHmg
AN ACT in relation to rights and remedies.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Probate Act of 1975 is amended by
changing Sections 2-2 and 2-4 as follows:
(755 ILCS 5/2-2) (from Ch. 110 1/2, par. 2-2)
Sec. 2-2. Illegitimates.) The intestate real and
personal estate of a resident decedent who was illegitimate
at the time of death and the intestate real estate in this
State of a nonresident decedent who was illegitimate at the
time of death, after all just claims against his estate are
fully paid, descends and shall be distributed as follows:
(a) If there is a surviving spouse and also a descendant
of the decedent: 1/2 of the entire estate to the surviving
spouse and 1/2 to the decedent's descendants per stirpes.
(b) If there is no surviving spouse but a descendant of
the decedent: the entire estate to the decedent's
descendants per stirpes.
(c) If there is a surviving spouse but no descendant of
the decedent: the entire estate to the surviving spouse.
(d) If there is no surviving spouse or descendant but
the mother or a descendant of the mother of the decedent:
the entire estate to the mother and her descendants, allowing
1/2 to the mother and 1/2 to her descendants per stirpes.
(e) If there is no surviving spouse, descendant, mother
or descendant of the mother of the decedent, but a maternal
grandparent or descendant of a maternal grandparent of the
decedent: the entire estate to the decedent's maternal
grandparents in equal parts, or to the survivor of them, or
if there is none surviving, to their descendants per stirpes.
(f) If there is no surviving spouse, descendant, mother,
descendant of the mother, maternal grandparent or descendant
of a maternal grandparent of the decedent: the entire estate
to the decedent's maternal great-grandparents in equal parts
or to the survivor of them, or if there is none surviving, to
their descendants per stirpes.
(g) If there is no surviving spouse, descendant, mother,
descendant of the mother, maternal grandparent, descendant of
a maternal grandparent, maternal great-grandparent or
descendant of a maternal great-grandparent of the decedent:
the entire estate in equal parts to the nearest kindred of
the mother of the decedent in equal degree (computing by the
rules of the civil law) and without representation.
(h) If there is no surviving spouse or mother of the
decedent and no known kindred of the mother of the decedent:
the real estate escheats to the county in which it is
located; the personal estate physically located within this
State and the personal estate physically located or held
outside this State which is the subject of ancillary
administration within this State escheats to the county of
which the decedent was a resident or, if the decedent was not
a resident of this State, to the county in which it is
located; all other personal property of the decedent of
every class and character, wherever situate, or the proceeds
thereof, shall escheat to this State and be delivered to the
Director of Financial Institutions of this State pursuant to
the Uniform Disposition of Unclaimed Property Act.
An illegitimate person is heir of his mother and of any
maternal ancestor and of any person from whom his mother
might have inherited, if living; and the descendants of an
illegitimate person shall represent such person and take by
descent any estate which the parent would have taken, if
living. If a decedent has acknowledged paternity of an
illegitimate person or if during his lifetime or after his
death a decedent has been adjudged to be the father of an
illegitimate person, that person is heir of his father and of
any paternal ancestor and of any person from whom his father
might have inherited, if living; and the descendants of an
illegitimate person shall represent that person and take by
descent any estate which the parent would have taken, if
living. If during his lifetime the decedent was adjudged to
be the father of an illegitimate person by a court of
competent jurisdiction, an authenticated copy of the judgment
is sufficient proof of the paternity; but in all other cases
paternity must be proved by clear and convincing evidence. A
person who was illegitimate whose parents intermarry and who
is acknowledged by the father as the father's child is
legitimate. After an illegitimate person is adopted, that
person's relationship to his or her adopting and natural
parents shall be governed by Section 2-4 of this Act. For
purposes of inheritance, the changes made by this amendatory
Act of 1997 apply to all decedents who die on or after
January 1, 1998. For the purpose of determining the property
rights of any person under any instrument, the changes made
by this amendatory Act of 1997 apply to all instruments
executed on or after January 1, 1998.
(Source: P.A. 81-400.)
(755 ILCS 5/2-4) (from Ch. 110 1/2, par. 2-4)
Sec. 2-4. Adopted child and adopting parent.
(a) An adopted child is a descendant of the adopting
parent for purposes of inheritance from the adopting parent
and from the lineal and collateral kindred of the adopting
parent and for the purpose of determining the property rights
of any person under any instrument, unless the adopted child
is adopted after attaining the age of 18 years and the child
never resided with the adopting parent before attaining the
age of 18 years, in which case the adopted child is a child
of the adopting parent but is not a descendant of the
adopting parent for the purposes of inheriting from the
lineal or collateral kindred of the adopting parent. An
adopted child and the descendants of the child who is related
to a decedent through more than one line of relationship
shall be entitled only to the share based on the relationship
which entitles the child or descendant to the largest share.
The share to which the child or descendant is not entitled
shall be distributed in the same manner as if the child or
descendant never existed. For purposes of inheritance, the
changes made by this amendatory Act of 1997 apply to all
decedents who die on or after January 1, 1998. For the
purpose of determining the property rights of any person
under any instrument, the changes made by this amendatory Act
of 1997 apply to all instruments executed on or after January
1, 1998. For such purposes, an adopted child also is a
descendant of both natural parents when the adopting parent
is the spouse of a natural parent.
(b) An adopting parent and the lineal and collateral
kindred of the adopting parent shall inherit property from an
adopted child to the exclusion of the natural parent and the
lineal and collateral kindred of the natural parent in the
same manner as though the adopted child were a natural child
of the adopting parent, except that the natural parent and
the lineal or collateral kindred of the natural parent shall
take from the child and the child's kindred the property that
the child has taken from or through the natural parent or the
lineal or collateral kindred of the natural parent by gift,
by will or under intestate laws.
(c) For purposes of inheritance from the child and his
or her kindred (1) the person who at the time of the adoption
is the spouse of an adopting parent is an adopting parent and
(2) a child is adopted when the child has been or is declared
by any court to have been adopted or has been or is declared
or assumed to be the adopted child of the testator or grantor
in any instrument bequeathing or giving property to the
child.
(d) For purposes of inheritance from or through a
natural parent and for determining the property rights of any
person under any instrument, an adopted child is not a child
of a natural parent, nor is the child a descendant of a
natural parent or of any lineal or collateral kindred of a
natural parent, unless one or more of the following
conditions apply:
(1) The child is adopted by a descendant or a
spouse of a descendant of a great-grandparent of the
child, in which case the adopted child is a child of both
natural parents.
(2) A natural parent of the adopted child died
before the child was adopted, in which case the adopted
child is a child of that deceased parent and an heir of
the lineal and collateral kindred of that deceased
parent.
(3) The contrary intent is demonstrated by the
terms of the instrument by clear and convincing evidence.
An heir of an adopted child who, by reason of this
subsection (d), is not a child of a natural parent is also
not an heir of that natural parent or of the lineal or
collateral kindred of that natural parent. A fiduciary who
has actual knowledge that a person has been adopted, but who
has no actual knowledge that any of paragraphs (1), (2), or
(3) of this subsection apply to the adoption, shall have no
liability for any action taken or omitted in good faith on
the assumption that the person is not a descendant or heir of
the natural parent. The preceding sentence is intended to
affect only the liability of the fiduciary and shall not
affect the property rights of any person.
For purposes of inheritance, the changes made by this
amendatory Act of 1997 apply to all decedents who die on or
after January 1, 1998. For the purpose of determining the
property rights of any person under any instrument, the
changes made by this amendatory Act of 1997 apply to all
instruments executed on or after January 1, 1998. If an
adopted child is related by blood to the adopting parent, the
adopted child and his or her descendants shall take property
from the estate of the adopting parent only as an adopted
child or descendants of an adopted child and not as relatives
by blood. For the purpose of determining the property rights
of any person under any instrument executed before, on or
after September 1, 1989, an adopted child is a descendant of
both natural parents when the adopting parent is the spouse
of a natural parent, unless the contrary intent is
demonstrated by the terms of the instrument by clear and
convincing evidence.
(e) For the purpose of determining the property rights
of any person under any instrument executed on or after
September 1, 1955, an adopted child is deemed a child born to
the adopting parent unless the contrary intent is
demonstrated by the terms of the instrument by clear and
convincing evidence.
(f) After September 30, 1989, a child adopted at any
time before or after that date is deemed a child born to the
adopting parent for the purpose of determining the property
rights of any person under any instrument executed before
September 1, 1955, unless one or more of the following
conditions applies:
(1) The intent to exclude such child is
demonstrated by the terms of the instrument by clear and
convincing evidence.
(2) An adopting parent of an adopted child, in the
belief that the adopted child would not take property
under an instrument executed before September 1, 1955,
acted to substantially benefit such adopted child when
compared to the benefits conferred by such parent on the
child or children born to the adopting parent. For
purposes of this paragraph:
(i) "Acted" means that the adopting parent
made one or more gifts during life requiring the
filing of a federal gift tax return or at death
(including gifts which take effect at death), or
exercised or failed to exercise powers of
appointment or other legal rights, or acted or
failed to act in any other way.
(ii) Any action which substantially benefits
the adopted child shall be presumed to have been
made in such a belief unless a contrary intent is
demonstrated by clear and convincing evidence.
(g) No fiduciary or other person shall be liable to any
other person for any action taken or benefit received prior
to October 1, 1989, under any instrument executed before
September 1, 1955, that was based on a good faith
interpretation of Illinois law regarding the right of adopted
children to take property under such an instrument.
(h) No fiduciary under any instrument executed before
September 1, 1955, shall have any obligation to determine
whether any adopted child has become a taker under such
instrument due to the application of subsection (f) unless
such fiduciary has received, on or before the "notice date",
as defined herein, written evidence that such adopted child
has become a taker of property. A fiduciary who has received
such written evidence shall determine in good faith whether
or not any of the conditions specified in subsection (f)
exists but shall have no obligation to inquire further into
whether such adopted child is a taker of property pursuant to
such subsection. Such written evidence shall include a sworn
statement by the adopted child or his or her parent or
guardian that such child is adopted and to the best of the
knowledge and belief of such adopted child or such parent or
guardian, none of the conditions specified in such subsection
exists. The "notice date" shall be the later of February 1,
1990, or the expiration of 90 days after the date on which
the adopted child becomes a taker of property pursuant to the
terms of any instrument executed before September 1, 1955.
(i) A fiduciary shall advise all persons known to him or
her to be subject to these provisions of the existence of the
right to commence a judicial proceeding to prevent the
adopted child from being a taker of property under the
instrument.
(Source: P.A. 86-606; 86-842; 86-1028.)
Section 10. The Instruments Regarding Adopted Children
Act is amended by changing Section 1 as follows:
(760 ILCS 30/1) (from Ch. 40, par. 1652)
Sec. 1. Property rights. (a) For the purpose of
determining the property rights of any person under any
nontestamentary instrument, an adopted child's relationship
to his or her adopting and natural parents shall be governed
by Section 2-4 of the Probate Act of 1975. For the purpose of
determining the property rights of any person under any
nontestamentary instrument, the changes made by this
amendatory Act of 1997 apply to all nontestamentary
instruments executed on or after January 1, 1998. executed on
or after September 1, 1955, an adopted child is deemed a
child born to the adopting parent unless the contrary intent
is demonstrated by the terms of the instrument by clear and
convincing evidence.
(b) After September 30, 1989, a child adopted at any
time before or after that date is deemed a child born to the
adopting parent for the purpose of determining the property
rights of any person under any instrument executed before
September 1, 1955, unless one or more of the following
conditions applies:
(1) The intent to exclude such child is demonstrated by
the terms of the instrument by clear and convincing evidence.
(2) An adopting parent of an adopted child, in the
belief that the adopted child would not take property under
an instrument executed before September 1, 1955, acted to
substantially benefit such adopted child when compared to the
benefits conferred by such parent on the child or children
born to the adopting parent. For purposes of this paragraph:
(i) "Acted" means that the adopting parent made one or
more gifts during life requiring the filing of a federal gift
tax return or at death (including gifts which take effect at
death), or exercised or failed to exercise powers of
appointment or other legal rights, or acted or failed to act
in any other way.
(ii) Any action which substantially benefits the adopted
child shall be presumed to have been made in such a belief
unless a contrary intent is demonstrated by clear and
convincing evidence.
(c) No fiduciary or other person shall be liable to any
other person for any action taken or benefit received prior
to October 1, 1989, under any instrument executed before
September 1, 1955, that was based on a good faith
interpretation of Illinois law regarding the rights of
adopted children to take property under such an instrument.
(d) No fiduciary under any instrument executed before
September 1, 1955, shall have any obligation to determine
whether any adopted child has become a taker under such
instrument due to the application of subsection (b) unless
such fiduciary has received, on or before the "notice date"
(as defined herein), written evidence that such adopted child
has become a taker of property. A fiduciary who has received
such written evidence shall determine in good faith whether
or not any of the conditions specified in subsection (b)
exists but shall have no obligation to inquire further into
whether such adopted child is a taker of property pursuant to
such subsection. Such written evidence shall include a sworn
statement by the adopted child or his or her parent or
guardian that such child is adopted and to the best of the
knowledge and belief of such adopted child or such parent or
guardian, none of the conditions specified in such subsection
exists. The "notice date" shall be the later of February 1,
1990, or the expiration of 90 days after the date on which
the adopted child becomes a taker of property pursuant to the
terms of any instrument executed before September 1, 1955.
(e) A fiduciary shall advise all persons known to him or
her to be subject to these provisions of the existence of the
right to commence a judicial proceeding to prevent the
adopted child from being a taker of property under the
instrument.
(Source: P.A. 86-842.)