The Capacity to Inherit of the Adoptive Child Vs the Conceived Child in Albania
The Capacity to Inherit of the Adoptive Child Vs the Conceived Child in Albania

Author(s): Jonada Zyberaj
Subject(s): Law, Constitution, Jurisprudence, Civil Law, International Law
Published by: Пловдивски университет »Паисий Хилендарски«
Keywords: adopted child; ability to inherit; biological child; conception; principle of equality
Summary/Abstract: In the light of the principle of equality of children, the law promotes the same rights between children, regardless of their status as born out of wedlock or as adopted ones. Even though the importance of this principle is not questioned, in some cases the inheritance rights and the ability to inherit is linked with the moment of conception, excluding so the possibility of their application in the cases of adoption. The Albanian Family Law, aiming at guaranteeing the best interest of the child, provides for a favorable treatment of the child in an adoption process, by giving him the right to inherit his adoptive parent even if the latter dies before the court’s decision, if the court will approve the adoption. The law does not provide the same right for the adoptive parent in vice versa. The adoptive parent can inherit his adoptive child only after the court has approved the adoption. Even though the Albanian legislation guarantees the equality between children and provides favorable provisions in order to fulfill the best interest of the child, some provisions of the inheritance law are based in the moment of conception which makes them explicitly applicable only in cases of the biological child. The capacity to inherit belongs also to the child who has been conceived before the death of the deceased, but who is born alive, and also to the non-indirect children of a person, who was alive at the time of the death of the testator, even if those children were not yet conceived. Both of these provisions linked the moment of the acquisition of the quality as an heir, to the moment of the child’s conception. This has drowned the attention of the doctrine to the discussion of whether the term “non-direct children” will refer only to biological children or even to adopted ones. The paper aims at analyzing the ability to inherit of the adopted child by interpreting the way the above dispositions should be implemented in accordance to the equality principle and by comparing them to other legal systems that have influenced the Albanian legislation.

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