Family Law Newsletter

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• Different Citizenship Requirements May Apply to Children Born to Unmarried Parents
  Children born out of wedlock outside the United States to one citizen parent and one noncitizen parent face different requirements for acquiring U.S. citizenship, depending on the gender of the citizen parent. The Immigration and... Read more.
• Applicable Federal Taxes for Community Property
  A number of states are “community property” states, meaning that they recognize the concept of community property law. Community property law is dependent on state law and will therefore vary somewhat from state to state,... Read more.
• Inheritance Rights of Spouses after Separation and Divorce
  Most people are aware that a surviving spouse is usually entitled to inherit all or a large portion of the estate of a deceased spouse. Fewer understand the effect on estates if one spouse dies during a legal separation or after a... Read more.

• Rapper Future a no-show for local lawsuit
• Tampa businessman, 77, files for divorce from 26-year-old wife who was arrested for fraud, exploitation
• January is the most popular month for divorce — here’s the financial upside to breaking up (no, really)
• Dulos Seeks Dismissal of Divorce Case to Gain Guardianship of Kids
• Miley Cyrus and Liam Hemsworth Reach Divorce Settlement

The Legal Fiction of Equitable Adoption When a Person Dies Without a Will

In general terms, the judicial doctrine of “equitable adoption” recognizes a valid parent-child relationship in the absence of a formal adoption procedure, holding a person who has acted like a child’s parent for a number of years (without ever formally adopting the child) to the same rights and obligations as an adoptive parent. Similarly, the related doctrine of “adoption by estoppel” applies to allow children who have been adopted in equity to assert legal rights against their parents, when a parent attempts to refute the obligations imposed upon them under the principles of equitable adoption.

The Rights and Obligations of Adoptive Parents

A formal, legal adoption terminates the rights and obligations of natural parents toward their child. Likewise, adoptive parents assume the rights and obligations of a child’s natural parents and become primarily responsible for the health, safety, education and welfare of the child. Once a child has been legally adopted, the child usually has no right of inheritance from the estate of his or her biological parents. However, the adopted child usually obtains the right of inheritance from the estate of his or her adoptive parents.

Specifically, when a parent dies without a will, his or her estate is distributed according to a state’s intestacy laws, which establish the order of distribution of the estate among a decedent’s heirs. The inheritance rights of adoptive children are generally the same as the inheritance rights of a decedent’s natural children under the laws of intestacy.

The Inheritance Rights of “Non-Biological” Children

However, while adopted children are generally treated as the natural children of adopting parents (inheriting as natural children would under the intestate scheme), adult stepchildren and foster children in many states are not entitled to inherit in the event of intestacy, unless they have been adopted.

Under the doctrine of equitable adoption, a stepchild or foster child is treated as having been adopted for purposes of intestacy in many states, if three elements are satisfied:

• The relationship began during the child’s minority;
• It continued throughout the parties’ lifetimes; and
• It is established by clear and convincing evidence that the stepparent or foster parent would have adopted but for a legal barrier (i.e., a biological parent did not give consent to adoption).

Upon satisfaction of the aforementioned criteria, non-biological children who were never formally adopted by a deceased parent who died without a will may be entitled to take an intestate share from the decedent’s estate; they are treated as if they were formally adopted during the decedent’s lifetime.

Omitted or Pretermitted Children

A child may also present an inheritance claim for a portion of a parent’s estate under the doctrine of adoption by estoppel, when a parent dies with a will and the provisions of the will omit the child. Specifically, several states have adopted “pretermission” statutes that generally allow a child omitted from the provisions of a testator’s will to take an intestate share (i.e., equal in value to what the child would have received if the testator had died without a will). Pretermission statutes presume that the failure of the testator to provide for the child was accidental, or an oversight. Under these statutes, when a testator fails to provide in his will for any of his children born or adopted after the execution of his will, several states recognize the inheritance rights of the omitted children.

As the scope of a pretermission statute is typically reserved to protect the inheritance rights of natural or adopted children, the doctrine of equitable adoption can be of particular importance in allowing a non-biological child who was never legally adopted to take an intestate share from the testator’s estate when he or she was omitted from the testator’s will.

Exceptions
Although laws on the intestacy rights of pretermitted children vary by state, a typical pretermitted child statute makes three exceptions for when a pretermitted child will be barred from taking an intestate share:

• It appears from the face of the will that the testator intended to omit the child.
• Testator provided for the child outside of the will with the intent that the transfer be in lieu of a provision for the child in the will.
• Testator already had one or more children and gave substantially all of his estate to the parent of the omitted child when the testamentary plan was executed.

California, Texas and Maine are examples of the states that recognize some version of the aforementioned exceptions to the inheritance rights of pretermitted children. Given the implications of equitable adoption and adoption by estoppel on the inheritance rights of children when a parent dies, it is important to understand the particulars of a state’s probate code.

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