Update on Status of Adopted Issue Statute

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Brad Bedingfield, Esq., Wilmer Cutler Pickering Hale and Dorr LLP
Matthew R. Hillery, Esq., Edwards Angell Palmer & Dodge LLP
Suma V. Nair, Esq., Goulston & Storrs, P.C.

As a follow up to our August 6, 2010 post (available HERE), on January 21, 2011, Representative Alice Hanlon Peisch introduced An Act to Repeal the Adopted Children’s Act as House Docket No. 02828. A bill number will be assigned once the proposed legislation has been assigned to a committee, and a link to the draft will then be provided on this blog.

As background, Chapter 524 of the Acts of 2008 (the “Adopted Children’s Act”) reversed a longstanding rule of construction governing the treatment of adopted persons in wills, trusts and similar instruments executed before August 26, 1958. Adopted persons (or their issue), who were previously presumed to be excluded as beneficiaries where the instrument did not specify their status, are now presumed to be included, retroactively conferring upon them benefits they never before enjoyed and retroactively diminishing interests held by natural-born descendants.

The Adopted Children’s Act originally was signed by the Governor in January of 2009. Due to multiple concerns relating to the application of this retroactive statute, the Boston Bar Association and other bar associations asked the Legislature to repeal the new act or to delay its original April 15, 2009 effective date. The legislation took effect as scheduled, but in response to these requests, the Legislature included provisions in the 2009 budget that essentially suspended the new rule of construction from July 1, 2009 to June 30, 2010. The rule of construction then came back into effect on July 1, 2010 and has existed ever since. The bar’s further efforts to repeal the new rule permanently have been unsuccessful to date, but the proposed legislation has now been reintroduced in the House.

The Boston Bar Association continues to support the repeal of the rule of construction introduced by Chapter 524.