Adopting an Adult in Germany

First and foremost, adopting an adult symbolises the close parent-child relationship between the adopter and the adopted person. Adult adoption was introduced in 1975 when the entire adoption law was reformed in Germany. This adoption form is regulated by the German Civil Code (BGB). According to Section 1767 Para. 1 BGB, the adoption must be morally justified. This may be the case, for example, if the adult’s parents have died and the adult is therefore living with another family member. It may also be the case that the adult has a distant relationship with their parents while maintaining a closer relationship with the adopting person. In addition to adoption to strengthen the relationship between the parties involved, the motivation may also be pragmatic. This is usually the case due to advantages in inheritance and tax law that go hand in hand with adoption. However, such reasons should not be the determining factors.

The adoption must be “morally justified” according to Section 1767 Para. 1 BGB. Such justification can be assumed if a parent-child relationship existed between the adopting and the adopted person.

Case law shows that courts tend to regard an adoption as not “morally justified” if there is a fundamental suspicion that financial reasons are the primary motivation. Such an adoption application is, therefore, generally not granted. In a decision by the Higher Regional Court of Stuttgart in 2014, for example, an aunt was denied permission to adopt her nephew because the court considered the reason for the adoption to be primarily financially motivated despite the close family relationship. The court emphasised that the person concerned had a healthy relationship with his parents and lived with them. This makes it clear that a third parent can be an aggravating factor in adoption proceedings.

Proof of a close relationship between the adopter and the adoptee can be provided if the following conditions are met:

• close personal relationship over an extended period of time,
• parent-child-like age difference between the persons concerned,
• a serious intention to care for each other in the event of financial or health problems.

It is worth mentioning that it is unnecessary to be related to each other to adopt. In most cases involving the adoption of an adult, this is indeed the case. However, if a person wishes to adopt a non-relative, this is not legally objectionable, provided the factors mentioned above are proven.

In the context of adopting an adult, an application must first be made to the German Family Court, Section 1768 BGB. The application must

• set out the reasons why the adoption should take place (in accordance with the above-mentioned criteria),
• include declarations of consent by both parties (the adopter and the person to be adopted) as well as
• consent of the spouse (if applicable).

The children of the adopter and the adoptee are also heard. It is advisable to consult a lawyer to explain the reasons for the adoption to increase the chances of a successful adoption procedure. Our German family law team will ensure that your application complies with the legal requirements and that the parent-child relationship is appropriately explained.

However, it should be noted that the court will also consider whether the adoptive parents already have biological children when making its decision. As these are also involved and heard by the court in the adoption procedure, it is advisable to inform and involve them sufficiently before the application is submitted.

In principle, German law stipulates that the provisions on the adoption of minors also apply correspondingly to the adoption of adults (Section 1767 (1) BGB). However, the forms of adoption also differ in some key respects.

In contrast to adopting a minor, adopting an adult generally does not change the family relationship with their own relatives. Adoption of an adult is generally a “weak adoption”. The legal relationship with the existing family, therefore, remains unaffected. The aunt or uncle of the adult remains so even after the adoption. Compared to adopting a minor, this is therefore regarded as a weaker form of adoption.

This lack of effect of the adoption on the existing family relationship means that the adopted person is not legally connected to the family of the adopted adult. This is regulated for spouses in Section 1770 BGB. This states that neither a legal relationship is established between the spouse of the adopting person and the adult nor between the spouse of the adopted person and the adopting person. It should also be noted that when an adult is adopted, their spouse’s permission is required if they are married.

Adoption is generally associated with the establishment of a new family relationship and the simultaneous termination of the relationship with the biological or previous family. The fact that there are no longer any legal ties between the adoptee and their previous family results from full adoption, which German law did not initially provide for. The current law only recognises adoption instead of a child with minor legal effects. The child’s relationship to their previous relatives and their rights and obligations remain unaffected (Section 1764 BGB). The parents only lose parental authority and the right of access. The maintenance obligation of the previous relatives remains in place, only taking second place to that of the adopter (Section 1766 BGB). The child remains liable to pay maintenance to its relatives. Mutual inheritance rights are also not affected. Even if the child’s relationship with their previous relatives has been completely severed, the child remains bound to their previous family by rights and obligations that can be updated at any time (BT-Drs. 7/3061 p. 19). It was not until 1975 that the German Bundestag introduced the idea of strong adoption (full adoption).

Therefore, the decisive difference between strong and weak adoption is the (non-) continuation of the previous family relationships. In the case of a weak adoption, the previous family relationships of the adopted adult are maintained, whereas in the case of a strong adoption, these are extinguished.

In the case of adult adoption, weak adoption is the rule, while strong adoption is the rule for the adoption of minors:

Section 1770
Effect of adoption

(1) The effects of the adoption of a person of full age do not extend to the relatives of the adoptive parent. The spouse or life partner of the adoptive parent does not become a relative by marriage of the person adopted, and the spouse or life partner of the person adopted does not become a relative by marriage of the adoptive parent.

(2) The rights and duties arising from the relationship between the person adopted and their descendants and their relatives are not affected by the adoption except as otherwise provided by law.

(3) The adoptive parent is obliged to pay maintenance to the person adopted and the descendants of the person adopted before the blood relatives of the person adopted.

Therefore, the adopted adult only acquires a relationship with the adopter themselves through the adoption, not with their relatives. This has implications for inheritance law, for example. According to statutory succession, the adopted adult is not inherited by the parents or siblings of their adoptive parent but exclusively by the adopter themselves. In return, the rights and obligations arising from the relationship established by descent remain in place.

In exceptional cases prescribed by German law, an adult can be fully adopted, Section 1772 BGB. A full adoption is, therefore, possible for adults if:

• a minor brother or sister of the adoptee has been adopted as a child by the adopter or is being adopted at the same time, or
• the adoptee has already been adopted into the adopter’s family as a minor, or
• the adopter adopts the child of their spouse, or
• the adoptee is under the age of majority at the time the application for adoption is submitted to the German family court.

The advantages of adoption under German inheritance and tax law are manifold. For example, adoption can be beneficial when transferring a property to the adopted child. Under German law, children, including those of full age, can receive a tax allowance of up to €400,000 as part of a gift or inheritance. However, this is not an option for distant relatives and non-relatives. For example, the tax allowance for nieces and nephews is only €20,000. Adoption can, therefore, be in the interests of the testator and the inherited. The tax rate itself also varies depending on the degree of the relationship. While this is about 7% for children and grandchildren, the tax rate for non-relatives is about 30%.

It becomes clear that the legal status of a child created by adopting the adult becomes more attractive, especially if the adult is to enjoy the full benefit of the inheritance. Accordingly, adopting an adult (be it a distant relative or a close friend) plays a role in practice, particularly when a wealthy family has no children and wishes to pass on its assets to another person.

Indeed, the courts are usually aware that tax advantages often play a significant role. However, an application is rarely rejected for this reason alone. As long as the legal requirements (explained later in this article) are met, such an adoption may also be legitimate. However, it must be shown that the adoption is not being made solely for these considerations. This proof can cause difficulties in practice. It must be apparent from the documents served on the court that the adoption is sought primarily because of a particularly close relationship between the adopter and the adopted person. It may be advisable to seek legal advice before submitting the relevant documents for adoption to avoid any adverse consequences in the adoption proceedings.