Adopting an Adult in Germany

First and foremost, adopting an adult is intended to symbolise the close parent-child relationship between the adopting (‘the adopter’) and the adopted (‘the adoptee’). The adoption of adults was introduced in 1975 when the entire system around German adoption law was reformed. This form of adoption is legally regulated in the German Civil Code (BGB) in §§ 1767 ff. BGB. According to § 1767 para. 1 BGB, the adoption of an adult must be morally justified. This may be the case, for example, if the adult’s parents are deceased and the adult is living with another family member. The adult may also have a distant relationship with their parents while maintaining a closer relationship with the adopting person.

In addition to the adoption to strengthen the relationship between the parties, the motivation may also lie in pragmatic reasons – for example, due to advantages in inheritance and tax law. However, such reasons must not be the determining factors.

The adoption must be ‘morally justified’ according to § 1767 para. 1 BGB. Such a justification is to be assumed, particularly if a parent-child relationship existed between the adopting and the adopted person.

Case law shows that courts tend not to consider adoption to be ‘morally justified’ if there is a fundamental suspicion that financial reasons are the primary motivation. Therefore, such an adoption application will not be granted as a rule. In a 2014 ruling by the Higher Regional Court of Stuttgart, an aunt was denied permission to adopt her nephew because the court found that the reason for the adoption, despite the close family relationship, was primarily financially motivated. The court emphasised that the person concerned had a healthy relationship with their own parents and also lived with them. This illustrates that a third parent can be an aggravating factor in an adoption procedure.

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

• close personal relationship over a long period,
• a parent-child-like age difference between the persons concerned,
• Serious intention to take care of 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. This is the situation in most cases involving the adoption of an adult. However, if a person wants to adopt a non-relative, this cannot be legally objected to, provided that the above factors are proven.

In the context of adopting an adult in Germany, the first step is to submit a notarised application to the local family court, cf. § 1768 BGB. The application must  

• explain the reasons for the adoption (following the criteria mentioned above),
• include declarations of consent from both sides (the adopter and the adoptee) and
• The consent of the spouse (if applicable).

The children of the adoptive parent and the adoptee will also be heard. It is advisable to consult an experienced German family lawyer to increase the chances of a successful adoption procedure and to explain the reasons for the adoption. At Schlun & Elseven Rechtsanwälte, our German family law team will ensure that your application complies with the law and that the ‘parent-child relationship’ is adequately explained.  

The family court will consider whether the adoptive parents already have biological children in reaching its decision. Since these children are also involved in and heard by the court in the adoption proceedings, it is advisable to inform and involve them sufficiently before filing an application.  

German law basically stipulates that the provisions for adopting minors also apply to adopting adults (§ 1767 (1), (2) 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 familial relationship with their own relatives. Thus, the legal relationship with the existing family remains unchanged. The adopting adult’s relationship to their other family members, such as aunts or uncles, remains so even after the adoption. Compared to the adoption of a child, the adoption of an adult is, therefore, regarded as a weaker form of adoption under German law.  

This lack of effect of adoption on the existing family relationship means that the adopting person is not legally connected to the family of the adopted adult. For spouses, this is regulated in § 1770 (1) BGB. It states that neither a legal relationship between the spouse of the adopting person and the adult nor one between the spouse of the adopted person and the adopting person is established. Furthermore, it should be noted that the other spouse’s consent is required if an adult is adopted by only one spouse, § 1749 (1) BGB.  

In principle, adoption is associated with establishing a new family relationship and simultaneously dissolving the relationship with the biological or previous family. The fact that there is no longer any legal bond between the adoptee and their previous family is the consequence of a strong adoption (full adoption), which German law did not initially provide for:  

‘The law only recognises adoption with minor legal effects. The child’s relationship to their previous relatives and the rights and duties arising from it remain unaffected (§ 1764 BGB). The parents only lose parental authority and the right to communicate with the child; the previous relatives’ duty of maintenance remains in place and is only superseded by that of the adoptive parent (§ 1766 BGB). The child remains subject to the maintenance obligations towards his relatives. The mutual right of succession is not affected either. Even if the child’s actual relationships with their previous relatives have been completely severed, the child remains bound to their previous family by rights and obligations that may become relevant at any time (Bundestag printed paper 7/3061 p. 19).‘ 

Therefore, the decisive difference between strong and weak adoption is the (non-)continuance of the previous family relationships. In the case of weak adoption, the previous family relationships of the adopted adult are maintained; in the case of strong adoption, they lapse.  

In the case of adoption of adults, weak adoption is the norm, whereas in the case of adoption of minors, strong adoption is the norm:  

• 1770 BGB Effect of adoption

(1) The effects of the adoption of an adult do not extend to the relatives of the adopter. The spouse or life partner of the adopter does not become related to the adoptee, nor does the spouse or life partner of the adoptee become related to the adopter.  

(2) The rights and duties arising from the family relationship of the adopted person and his descendants to their relatives shall not be affected by the adoption unless the law provides otherwise.  

(3) The adopter is obliged to provide maintenance to the adoptee and the adoptee’s descendants before the adoptee’s natural relatives.  

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

In exceptional cases prescribed by law, an adult can also be fully adopted; see §1772 BGB. Accordingly, a full adoption is possible for adults if:  

• A brother or sister of the person to be adopted who is a minor has been adopted as a child by the person adopting or is being adopted at the same time or
• The person to be adopted has already been taken into the family of the person adopting as a minor or
• The adopter adopts the child of their spouse or
• The adoptee is still a minor at the time of filing the application for adoption with the family court.

The inheritance and tax advantages of adoption are manifold. For example, adoption can be helpful when transferring a property to the adopted “child”. Under German law, children, even those of legal age, can receive a tax-free allowance of up to €400,000 as part of a gift or inheritance. This is not an option for more distant relatives and non-relatives. For example, the tax-free allowance for nieces and nephews is only €20,000. Adoption can, therefore, serve the interests of the testator and the heir. The tax rate itself also varies depending on the degree of kinship. While it is around 7% for children and grandchildren, the tax rate for non-relatives is around 30%.  

The legal status of a child created by adopting an adult becomes particularly attractive if the adult is to benefit fully from the inheritance. Therefore, 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 of their own and wishes to pass on their wealth to someone else.  

While the courts are generally aware that tax benefits often play a significant role, an application is rarely rejected on these grounds alone. As long as the legal requirements are met, such an adoption can be legitimate. However, it must be demonstrated that the adoption is motivated by more than just these considerations. In practice, this can be difficult to prove. The documents submitted to the court must clearly show that the adoption is primarily sought because of a particularly close relationship between the adoptive parent and the adoptee. Therefore, seeking legal advice before submitting the relevant adoption documents is advisable to avoid any adverse consequences in the adoption process.