Adoption according to the old law before January 1st, 1977 I was adopted before 1/1/1977. am i heir
That's a very difficult question. Cases with old adoptions (according to the old adoption law before 1977) are complicated. It depends, among other things, on whether you were of legal age on December 31, 1977 or not and whether the inheritance and/or compulsory portion rights of the adopting party were excluded in the adoption contract at the time. In the case of a minor adoption, those involved could also object to the application of the new law.
Normally, an adult on January 1, 1977 has an inheritance and compulsory share right over his or her birth parents and adoptive parents. However, the right of inheritance towards his adoptive parents can be excluded in the acceptance contract (= adoption contract), which still applies today.
In the case of minors as of December 31, 1977, the adopted child normally has an inheritance and compulsory portion right vis-à-vis the adoptive parents and their relatives, but no longer vis-à-vis the biological parents and biological relatives. In the event of an objection to the new adoption law, which was possible up until December 31, 1977, the legal effects are the same as for an adult on December 31, 1977 (see above).
The following description must be worked through in detail in order to determine your entitlement to an inheritance and/or compulsory portion.
1. Overview of legacy adoption
An old adoption is an adoption that took place before January 1st, 1977 according to the old adoption law. At that time, the so-called “contract system” applied to adoption, ie the adoption took place through a notarial contract, which was confirmed by the district court. Since January 1, 1977, the "decree system" has applied instead. Adoption is no longer based on a contract, but by adoption decision of the family court (until 2009 the guardianship court) based on an adoption application to be notarized.
First of all, it should be noted that the old adoption law before January 1, 1977 – unlike the adoption law that has been in force since then – did not differentiate between underage and full adoption. The new law and the Adoptions Act with its transitional provisions that came into effect on January 1, 1977 brought a distinction.
1.1 Legal Effect of Legacy Adoption
1.1.1 Unilateral right of inheritance of the adopted child
Since the old adoptions were based on the contract system (a contract only has legal effects between the parties to the contract), the adoption only had inheritance effects to the extent that the adopted child and his children born after the adoption received a unilateral right of inheritance and a compulsory portion vis-à-vis the adopter. For a right of inheritance and a compulsory portion of the descendants already born, a contract was required with them as well. There was no right to an inheritance or a compulsory portion in relation to the other relatives of the adopter.
§ 1762 BGB old version
The effects of adoption in lieu of children extend to the descendants of the child. The effects only extend to a descendant already present at the time of the conclusion of the contract and their descendants born later if the contract is also concluded with the descendant already present.
1.1.2 No inheritance right of the adopter
The adopter himself received no inheritance and compulsory portion rights against the adopted child:
§ 1759 BGB old version
Adoption of a child does not establish a right of inheritance for the adopter.
1.1.3 The adopted child retains the right to inherit from biological relatives
The adopted child retained its right to inheritance and a compulsory portion in relation to its biological parents and relatives:
§ 1764 BGB old version
The rights and obligations arising from the family relationship between the child and its relatives are not affected by the adoption as a child, unless the law prescribes otherwise.
1.2 Exclusion of inheritance rights in the adoption contract
According to § 1767 BGB old version, the right of inheritance of the child and its descendants towards the adopter could be excluded in the adoption contract. The exclusion could also be limited to the compulsory portion.
§ 1767 BGB old version
(1) The child's right of inheritance can be excluded in relation to the adopter in the adoption contract.
(2) Apart from that, the effects of the adoption in the stead of a child cannot be changed in the contract.
2. Effects of old adoptions from January 1, 1977
Three cases can be distinguished here:
Adopted child was over 18 years old on January 1, 1977 (see below 2.1)
Adopted child was not yet 18 years old on January 1, 1977 (see below 2.2)
Up to December 31, 1976, no official confirmation of the adoption contract had been issued (see below 2.3)
2.1 On 01.01.1977 of legal age:
If the adopted child was over 18 years old on January 1st, 1977, the following applies according to Art. 12 § 1 AdoptionsG:
In principle, people who were adopted before December 31, 1977 and were over 18 on January 1, 1977 inherit the same as nowadays with a normal (so-called weak) adult adoption. The adopted child remains entitled to an inheritance and a compulsory portion from the biological parents (and their relatives) and also receives a right to an inheritance and a compulsory portion from the adopter(s) (without their relatives). The newly established inheritance and compulsory portion rights are reciprocal.
Caution: If the adoptee's right of inheritance and/or compulsory portion against the adopter was excluded in the adoption contract, this exclusion continues to apply.
Caution: Descendants of the adopted child who were already born when the adoption contract was signed only receive an inheritance and compulsory portion right after the adopter(s) if they were included in the adoption contract.
Art. 12 § 1 AdoptionsG (Adoption of Adults)
(1) If the person adopted in accordance with the previously applicable provisions is of legal age at the time this Act comes into force, the provisions of this Act on the adoption of adults shall be applied to the adoption relationship, unless Paragraphs 2 to 6 result in something else.
(2) The effects of adoption shall not be extended to a descendant of the child to whom the effects of adoption have not extended.
(3) If the child adopted by a woman has received the name that the woman used before marriage, it continues to use this name.
(4) If the testator died before this Act came into force, the previously applicable provisions shall apply to the inheritance situation.
(5) If the child's right of inheritance towards the adopter has been excluded in the adoption contract, this exclusion remains unaffected; in this case the adopter has no right of inheritance either.
(6) Section 1761 (1) of the Civil Code in the version of this Act shall apply accordingly. The deadlines specified in Section 1762 (2) of the Civil Code in the version of this law begin at the earliest when this law comes into force.
Example of an adoption contract from 1971:
Notarial Register No. 10/1971 Done
on January 29, 1971 ….
Before me, the district notary WK at the district notary S. - as a public notary - appear today in my office in S. - personally known and legally competent -:
1. Mrs. RM nee L, wife of the war missing LM (67 years old) as adopter
2. Mrs. HA née D. (25 years old) as adoptive
3. her husband Mr. BA
and declare:
We conclude the following
Child Adoption Agreement
§ 1
Ms. RM née L. - who has no biological children of her own - hereby adopts Ms. HA née D. in lieu of children.
§ 2
Since the adopter is over 21 years old, she can apply for exemption from the requirement that the adoptee be a minor by the district court O. (§§ 1745, 1744 BGB old version), which she does hereby.
§ 3
The husband of the adoptee, Mr. BA, gives his wife his consent, § 1746 BGB old version
§ 4
In the future, the person to be adopted should use the surname or maiden name L. (the person's maiden name), without adding her previous maiden name.
The adopter's husband, Mr. LM, has been missing from K.'s since January 1, 1945. His death declaration is pending at the district court O. The consent of the person to be declared dead cannot therefore be obtained. Therefore, L. – and not M. – is also intended as the surname of the adoptee. This is of little importance to the outside world anyway, since the prospective mother is married.
§ 5
We have been instructed about the legal provisions on child adoption.
The adoptive mother, Ms. M., was informed that she has no statutory right of inheritance over the adoptive mother.
§ 6
We apply to the district court O. for confirmation of this contract according to § 1753 BGB old version
….
The value of the assets of the adopters is given as approx. DM.
The above transcript was read out by the notary, approved by those who appeared and signed by hand as follows:
signatures
2.2 On 01.01.1977 minors:
If the adoption took place before December 31, 1971 and the adopted child was not yet 18 years old on January 1, 1977, the following applies from January 1, 1978:
2.2.1 Basically like today's underage adoption
In principle, the adopted child separates from the old family of its biological parents in terms of inheritance and moves over to the new adoptive family (as in the case of underage adoption under current law). Then the adopted child only has an inheritance right after the adoptive parents and their relatives, but no longer after the biological relatives.
Even if the right to inheritance and the right to a compulsory portion were excluded in relation to the adopter in the adoption contract, this exclusion is generally no longer valid
2.2.2 In the event of an objection such as a weak adult adoption – the exclusion of inheritance rights or compulsory portions in the adoption contract shall continue to apply
However, if an adopter, the adoptive child, a biological parent of a legitimate adoptive child or the mother of an illegitimate adoptive child submitted a notarized objection to the District Court of Berlin-Schoeneberg by December 31, 1977 that the new adoption rules should not be applied, the adoption has the effects the (weak = normal) adult adoption of new law. A mutual right to inheritance and a compulsory portion arises between the adopted child (including descendants) and the adopter(s). However, the adopted child is not related to the relatives of the adopter. The right of inheritance and compulsory portion to his biological parents and relatives is retained. Since the mutual right to inheritance and compulsory portion remains with regard to the biological parents and relatives,
Art. 12 § 2 Adoption Act (minor adoption; declaration rights)
(1) If the person adopted under the previously applicable provisions is a minor at the time this Act comes into force, the previously applicable provisions on the Adoption applied.
(2) After the expiry of the period specified in paragraph 1, the provisions of this Act on the adoption of minors shall apply to the adoption relationship; § 1 paragraphs 2 to 4 apply accordingly; the periods specified in Section 1762 (2) of the Civil Code in the version of this Act begin no earlier than the day on which the provisions of this Act are to be applied to the acceptance relationship. This does not apply if an adopter, the child, a biological parent of a legitimate child or the mother of an illegitimate child declares that the provisions of this Act on the adoption of minors should not be applied. If a parent's consent to adoption has been superseded by the guardianship court, that parent is not entitled to make the declaration.
(3) The declaration pursuant to subsection 2 sentence 2 can only be submitted to the district court of Schöneberg in Berlin-Schöneberg up to the end of the period specified in subsection 1. The declaration requires notarization; it becomes effective at the point in time at which it is received by the district court of Schöneberg in Berlin-Schoeneberg; it can be revoked in writing to the district court of Schöneberg in Berlin-Schoeneberg by the end of the period specified in paragraph 1. The revocation must be publicly certified. 4§ 1762 paragraph 1 sentence 2 to 4 of the Civil Code is to be applied.
(4) A declaration pursuant to paragraph 2 sentence 2 shall be made known to the persons who are also entitled to submit such a declaration. If the adopted person is a minor, this declaration is not to be made known to him, but to the competent youth welfare office. Such a notification should not be made if there is concern that it will reveal a non-obvious acceptance relationship.
Art. 12 § 3 AdoptionsG (Effects of the declaration according to § 2)
(1) If a declaration according to § 2 paragraph 2 sentence 2 is made, the provisions of this law apply to the adoption relationship after the expiry of the period specified in § 2 paragraph 1 applied to the acceptance of adults.
(2) The provisions of Section 1 Paragraphs 2 to 5 and Section 2 Paragraph 2 Clause 1 Clause 3 shall be applied accordingly. Section 1761 of the Civil Code applies. 3As long as the person adopted in lieu of a child is a minor, the relationship of adoption can also be canceled in accordance with section 1763 (1) and (2) of the Civil Code in the version of this Act.
2.3 Confirmation not yet issued on December 31, 1976
If the adoption contract was concluded before December 31, 1976, but the confirmation from the district court had not yet been issued by then, the parties involved had a right to choose. They could choose whether they wanted the adoption to be declared under the old or new law.
Art. 12 § 5 AdoptionsG (pending proceedings)
At the time this Act comes into force, the adopting person or the child has submitted an application for confirmation of a contract for adoption or for confirmation of a contract for cancellation of adoption to the competent court or entrusts the notary with the submission during or after the notarial certification of the contract, the confirmation can be made according to the previously applicable regulations. In this case, Section 15 (1) sentence 3 of the Civil Status Act is to be applied in the previously applicable version.
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