Adoptee Can Inherit from Biological Father

Elder Law Answers case summary.The Supreme Court of North Dakota finds that a son adopted by his stepfather can bring a petition for heirship to inherit from his biological father, who died intestate. In Estate of Lindberg (N.D. No. 20230102, January 22, 2024). 

After Arlen Lindberg died without a will, Chad Hanson petitioned to determine heirship, asserting he was the late Mr. Lindberg’s only child. Mr. Lindberg’s mother and siblings moved to dismiss the petition, filed an opposition in response, and requested DNA testing. They argued he could not claim parental rights because his stepfather had adopted him. The DNA test confirmed the biological relationship.

The district court found that North Dakota’s Uniform Probate Code’s provision defining genetic father requires applying the presumption of paternity in North Dakota’s Uniform Parentage Act. It rejected Mr. Hanson’s petition because it found that his stepfather was his presumptive father.

Mr. Hanson moved to alter or amend the judgment or reopen the court’s order. The court denied his motion, and he appealed.

The Supreme Court of North Dakota has jurisdiction. Since the record contains no evidence Mr. Hanson received notice of the order, the docket entry that shows he knew about it started the 60-day period within which he could appeal. As he appealed within that period, this court has jurisdiction.

On review, the highest court considers whether Mr. Hanson’s adoption by his stepfather bars him from inheriting from his biological father.

When the district court concluded that Mr. Hanson’s stepfather was his presumptive father, it relied on section 14-20-10(1)(e) of the Uniform Parentage Act. This section provides: “For the first two years of the child’s life, he resided in the same household with the child and openly held out the child as his own,” and the district court took living together as enough to establish genetic fatherhood.

The Supreme Court finds that the statute requires more than living together for the first two years of the child’s life. Moreover, Mr. Hanson’s stepfather married his mother two years after he was born, so there was not enough to suggest his stepfather lived with him and held him out to be his child before the marriage.

The district court also found that Mr. Hanson’s adoption by his stepfather created a presumption of paternity. Being adopted is not the same as adjudicating a parent-child relationship. The probate code provides that when a spouse of a genetic parent adopts a child, the child retains the right to inherit from both biological parents. The adoption did not constitute adjudication that the stepfather was a genetic parent.

The North Dakota Supreme Court reverses the order denying Mr. Hanson’s petition to determine heirship and remands the case.

Read the full opinion.