At Schlun & Elseven Rechtsanwälte, our family law team provides a range of services in this field, such as the following:
- Support with the application,
- Advice to both the adopting parents and the adopted adult (what is concretely involved with this move),
- Mediation services, when it comes to outlining the issues to the rest of the family,
- Representation to biological children where they have not been adequately informed,
At Schlun & Elseven, we are a full-service law firm that allows us to provide advice on family law issues and German inheritance law and thus will be able to offer a complete picture of what is involved. From our offices in Cologne, Aachen and Düsseldorf, we provide legal services in English and German.
Why Would an Adult be Adopted by Another Person?
Adult adoption is meant to symbolise the close similar-to-parent-child relationship between the adopting party and the adopted party. It is legislated for under the German Civil Code (BGB) starting at § 1767 BGB. Under this section, the adoption must be morally justified. Morally justified may include reasons such as the child’s parents have died and they have gone to live with another family member into adulthood. Another example may be where the person in question has had an estranged relationship with their parents and have a closer relationship with another person. We will outline how this morally justified and close relationship can be shown later on the page.
Although adoption does take place to solidify relationships, there are also more practical reasons as to why it takes place as well. These practical reasons are generally concerned with inheritance and tax.
What are the Inheritance Law and Tax Reasons for Adopting an Adult in Germany?
When seeking to pass on a property to another person, the process of adopting an adult can be used to ensure that the adopted adult benefits from the property. Under German law, children can receive a tax allowance of up to €400,000 for gifts and inheritance. More distant relatives and non-relations will not be allowed a tax allowance of this size. In fact, it is only a €20,000 tax allowance for nieces and nephews, and thus the planned inheritance may be nowhere near what was intended by the testator.
The tax rate itself also varies regarding the nature of the relationship between the testator and the person inheriting. This difference equates to around 7% for children and grandchildren and grows to 30% for non-relations. As can be seen, adopting an adult (whether a distant relative or a close friend) can be attractive should the desire exist to hand down property or assets. Adopting an adult can especially play a role where a family with assets do not have children, and they have a desire to pass on their assets to another individual.
The courts are aware that tax benefits play a strong role in these cases, however, as long as the legal basis is followed, the adoption can be legitimate. Presenting the information appropriately to show that the adoption is not merely for tax or inheritance reasons can prove difficult. The paperwork has to show a particularly close relationship between the testator and the intended adoptee. It may be best to consider legal counsel before submitting the documents concerning the adoption.
The Legal Requirements for Adopting an Adult in Germany
However, financial and inheritance reasons cannot be used as the main purpose or justification for the adoption. As stated in the law (§ 1767 BGB), the adoption must be “morally justified” based on a close relationship (“… in particular if a parent-child relationship has already developed between the adoptive parent and the person to be adopted.”)
Case law has shown that should the court suspect that financial reasons were the primary motivator, they may deem that the adoption is not “morally justified” and thus not permit it. In a Stuttgart Oberlandesgericht (Regional Appeal Court) decision in 2014, an aunt was prevented from adopting her nephew. Although they had a close relationship, the court viewed the reasons behind it being primarily financial in nature. The nephew in question had a healthy relationship with his own parents and even lived with them; the court viewed that a third parent would be a further complicated factor and that the primary motivation was financial reasons.
A close relationship that provides a morally justified basis for adopting an adult can be shown if there are the following factors:
- evidence of a close personal relationship over a long period of time,
- there is a parent-child like age difference between the parties in question,
- there is a serious intention to care for each other in cases of financial or health problems.
It is worth noting that there is no requirement to be related to each other. In most cases involving adopting an adult, the relationship between the parties will be some form of blood relationship. However, should a person wish to adopt a non-relative, it is allowed where the factors above are demonstrated.
What does the Process for Adopting an Adult in Germany Involve?
Adopting an adult in Germany involves sending an application to the family court (§ 1768 BGB). The application must outline the reasons why the adoption should take place (per the legal justification elements mentioned above) and also include consent forms from both sides (the adopting parents and the adopted adult) as well as the consent of the spouse (if applicable). When outlining the justification for the adoption, it is advisable to look for legal counsel regarding what to include in the form. Without reference to the law on the matter, the court will not allow for the adoption. Still, if the document does not convince that a “parent-child” relationship has developed, the application will also not work out.
The court will also hear from the adopting parents’ biological children (should they have any). Their role in this situation is outlined below. It is always advisable to keep the biological children involved and updated on the process. Adopting an adult does impact their legal status, and they may not appreciate it if they are not consulted on the matter. This can make the process much more difficult.
What if the Adopting Adult Already has Children?
Having biological children does not prevent the adopting parent from adopting an adult. However, the children do have a role to play in the process. Adopting an adult will have an impact on how the inheritance of the parent in question is handled. Under inheritance law, there is an obligation to ensure that your children benefit from the inheritance, extending to adopted children. It is not unusual for biological children to complain about the adoption, especially if they feel it is to deny or reduce their inheritance. Therefore, it is recommended to keep all those who will be impacted by the decision informed of what is happening and its reasons. Should the adopted adult have a spouse, their permission will also be required for the adoption to occur.
Should a person consider adopting an adult and have biological children, it is recommendable to sit down with those children and outline the process. This may involve requiring legal assistance when it comes to outlining how inheritance issues will be impacted. It is better to resolve any problems and openly discuss the topic privately rather than resolve them in a family law courtroom.
How does Adopting an Adult differ from Adopting a Child (Minor)?
Although adopting an adult has a similar impact on inheritance law, there are differences between adopting a person as an adult and adopting them as a child. Firstly, as mentioned, permission will be required from spouses should the adopted adult in question be married. Secondly, the adoption of an adult does not change their family relationships with their blood relatives. Therefore should a person be adopted as an adult, this will not change their relationship with their family. Their aunt or uncle will not cease to be their aunt and uncle. There is no “grandparent” rule in place here, so it is seen as a weaker adoption form than adopting a child.
This lack of changed familial status also extends to the adopting parent not becoming linked to the adopted adult’s extended family. § 1770 BGB outlines this clearly as regards the spouse of the adopted adult. It is stated that the spouses do not become a relative of the adopting parent.
§1770 (1) BGB states: “The effects of the adoption of a person of full age do not extend to the relatives of the adoptive parent. The spouse or civil partner of the adoptive parent does not become a relative by marriage of the person adopted, and the spouse or civil partner of the person adopted does not become a relative by marriage of the adoptive parent.”
What Obligations are placed on the Adopted Adult?
The adoption also places obligations on the part of the adopted adult. It is not a one-way street of just benefiting the adopted adult. The idea of the morally justified adoption points to the need for that adult to then support their newly adopted parent. In other words, this means providing financial or medical support should they require it. They cannot simply walk away from responsibilities. They now have a familial responsibility to look after and help their adopted parents. Adoption of an adult can be cancelled under § 1771 BGB in cases where there are compelling reasons to do so (among other factors). Not providing any support may be deemed to be a compelling reason.
Adopting non-Germans as Adults
There is no requirement for the person adopted to be born in Germany or be a German citizen. People are free to adopt non-Germans. However, adoption will not assist the adult in question when it comes to availing of German citizenship. Should the adopting parent consider it in order to help with the adopted adult’s citizenship (or residence permit) application they should take note that it won’t be of benefit. Therefore, other courses of action should be considered instead.
Morally justified reasons in the case of adopting an adult are also as stated above. This reasoning does not extend to cases where the adoption is taking place with the hope that it will allow the adult in question to remain in Germany. Without a close parent-child like relationship and the other requirements, there will be no adoption.