DNA testing kits and the law of inheritance

Recently, a woman in Sydney discovered by chance she had a half-sister in the United States after they both did DNA ancestry tests through the same genealogy website.

While such stories are particularly heart-warming for a probate lawyer who normally deals with people who have just lost family members, I can’t help but think of the legal implications of finding out you have another sibling.

The introduction of home DNA testing kits through sites like Ancestry.com has meant that anyone curious, and willing to spend about $100, can find out more about where they came from. It has also meant that millions of people have opened themselves up to the possibility of discovering new biological family members.

We are already seeing a huge change in our demographics with the ageing of the baby boomer population. A range of different succession law issues have become more common due to factors like an increase in blended families or the increased rates of dementia and other forms of cognitive impairment.

As these DNA testing kits become more popular, will the discovery of new biological parents or siblings mean that people have a right to inherit from their newly found family members?

The answer is a decidedly legal one – maybe.

The law of inheritance

The law of inheritance varies significantly from jurisdiction to jurisdiction. As a general rule of thumb, the place where a person leaves real property will determine the rules about how their estate will be administered. So even if you live in Victoria, if your long lost relative died with property in Scotland, the laws of Scotland will regulate how that property should be divided and whether you have a claim to it.

Legal lineage vs biological lineage

Inheritance generally relies on legal lineage, not just on biological lineage. This means that if a person has been adopted by another person, that would generally end any rights to inheritance from the biological parent.

Where a different parent has been recorded on a birth certificate, in some jurisdictions that can be amended with appropriate evidence, but it might affect inheritance rights in relation to the person who you thought was your parent, if your birth certificate is changed.

Overall rules of discretion

Even if inheritance rights exist, they might be affected by overall rules of discretion which could limit any entitlement that might exist.

So the moral of the story is, if you do a DNA test and discover some new family members, how wonderful!  

However, this does not necessarily mean that you have the right to inherit each other’s property. If some issues comes up later down the line when it comes to wills and inheritance, then you should contact a lawyer that’s experienced in wills and estates matters in that jurisdiction.

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Naomi de Costa, Maurice Blackburn lawyer, Will disputes

Naomi de Costa

Maurice Blackburn Cairns
Naomi de Costa is a Special Counsel and the Queensland leader of Maurice Blackburn’s Wills and Estates Law practice area. She is a Queensland Law Society Succession Law Accredited Specialist and trust and estate lawyer who is based in Cairns and sees clients in all ...

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