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A Suggested Solution to the Problem of Intestate Succession in Nontraditional Family Arrangements

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A Suggested Solution to the Problem of Intestate Succession in Nontraditional Family Arrangements Pace University DigitalCommons@Pace Pace Law Faculty Publications School of Law 2009 A Suggested Solution to the Problem of Intestate Succession in Nontraditional Family Arrangements: Taking the "Adoption" (and the Inequity) Out of the Doctrine of "Equitable Adoption" Irene D. Johnson Elisabeth Haub School of Law at Pace University Follow this and additional works at: https://digitalcommons.pace.edu/lawfaculty Part of the Estates and Trusts Commons, Family Law Commons, and the Law and Society Commons Recommended Citation Irene D. Johnson, A Suggested Solution to the Problem of Intestate Succession in Nontraditional Family Arrangements: Taking the "Adoption" (and the Inequity) Out of the Doctrine of "Equitable Adoption", 54 St. Louis U. L.J. 271 (2009), http://digitalcommons.pace.edu/lawfaculty/734/. This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Faculty Publications by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. A SUGGESTED SOLUTION TO THE PROBLEM OF INTESTATEINTESTATE SUCCESSION IN NONTRADITIONAL FAMILY ARRANGEMENTS: TAKING THE "ADOPTION" (AND(AND THE INEQUITY) OUT OF THE DOCTRINE OF "EQUITABLE''EQUITABLE ADOPTION" IRENE D. JOHNSON* INTRODUCTION**INTRODUCTION** Legal adoption and intestate succession are both creatures of statutory law.law. To legally add a child into a family that is not the child's family of birth, the potential adoptive parent(s) must satisfy a complex array of statutory requirements. Only after meeting the criteria established by statute and following statutory procedures for the finalization of the adoption will the court determine that the child (now the adopted child) enjoys the status of a full-blown member of the adoptive family.family.' I Intestate succession involves a * Professor of LawaiLaw at Pace University School of Law. ** Certain terminologytenninology has been adopted throughout this article for ease of discussion. In cases where a child had been raised by a family and has sought equitable adoption in order to inherit under the doctrine of equitable estoppel, this article will refer toto the people who could be found toto have equitably adopted the child as parents, "father," or "mother," as appropriate, rather thanthan using an expression such as "putative equitably adopting parents." "Parents" is used either in the plural form of two adults caring for a child or one adult caring for a child. The expression "not born into or legally adopted into a family"family" is used toto describe the circumstances of any child who might claim to have been equitably adopted, even though in some cases one of thethe child's birth parents will have been a familyfamily member who has participated in raising thethe child, because equitable adoption would have been sought as a method of inheriting fromfrom the other parent (often the child's stepparent) and because in some cases the child will have been raised by relatives of the birthparents such as the child's grandparents. For purposes of this article, a child is not "born into" a family,family, and thethe family isis not the child's "birth family" unless the child is being raised by both of the child's birth parents or by one of thethe child's birthbirthparentsparents without parental-typeparental-Iype involvementinvolvement of another person. l.1. WILLIAM M. MCGOVERN,McGOVERN, JR. & SHELDON F. KURTZ, WILLS, TRUSTS AND ESTATES § 2.10, at 100 (3d ed.ed. 2004) ("In the middle of the 19th century, statestate legislatures began toto enact generalgeneral adoption legislation. Formal adoptionadoption todaytoday has evolved from a relative rarityrarity to aa commoncommon occurrence .... ").). See, e.g., UNIF. ADOPTION ACT (1994) (noting that over 130,000130,000 adoptionsadoptions are granted in thethe U.S. each year); N.Y. DOM. REL. LAW § 117 (McKinney 1999 & Supp. 2008). For an examination of legal adoption inin the United States, see JanJan Ellen Rein, Relatives by Blood, Adoption, and Association: Who Should Get What and Why (The(The Impact of Adoptions, Adult Adoptions, and Equitable Adoptions on IntestateIntestate Succession and Class Gifts), 37 VAND. L. REv. 711,711,713-17713-17 (1984). 271 HeinOnline -- 54 St. Louis U. L.J. 271 2009 272 SAINTSAINT LOUISLOUIS UNIVERSITYUNIVERSITY fALAWW JOURNALJOURNAL [Vol.[Vol. 54:27154:271 state-devisedstate-devised statutorystatutory plan forfor dispositiondisposition ofof aa decedent'sdecedent's probateprobate estateestate inin situationssituations inin whichwhich thethe decedentdecedent hashas notnot effectivelyeffectively disposeddisposed ofof thatthat propertyproperty byby will or other arrangements oftenoften referred toto asas testamentarytestamentary substitutes.22 TheseThese twotwo creaturescreatures ofof thethe lawlaw occasionallyoccasionally meet inin thethe arenaarena ofof equitableequitable adoption,adoption, a limitedlimited remedialremedial doctrinedoctrine deviseddevised byby courts usingusing theirtheir equitableequitable powerspowers to permit a childchild who has notnot beenbeen formallyformally adopted intointo thethe familyfamily where the child has beenbeen raised (not thethe child'schild's birth family)family) toto inheritinherit by intestateintestate successionsuccession from thethe child'schild's putativeputative equitablyequitably adopting parent(s).3parent(s).3 TheThe doctrinedoctrine of equitable adoption, asas deviseddevised by courts of equity, recognizes thethe childchild asas an heir ofof the parent(s) inin very limitedlimited circumstances.circumstances.4 Other than satisfactionsatisfaction of thethe requirementsrequirements forfor anan equitable adoption inin thosethose states thatthat recognize the doctrine,5 the only way to become an heir for intestate succession recognize the doctrine,5 the only way to become an heir6 for intestate succession purposes isis to be born into or adopted into aa family.6family. 2. See ELIASELIAS CLARK ET AL., CASESCASES AND MATERIALS ON GRATUITOUS TRANSFERS­TRANSFERS- WILLS, INTESTATE SUCCESSION, TRUSTS, GIFTs,GIFrs, FuTUREFUTURE INTERESTSINTERESTS AND ESTATE AND GIFfGIFT TAXATION 5555 (5th ed. 2007) ("In this country, intestate succession is based entirely on statute."). See,See. e.g., UNIF. PROB. CODE §§ 2-1012-114 (amended 1990); N.Y. EST. POWERS & TRUSTS LAW §§ 4-1.1-1.6 (McKinney 1998 & Supp. 2008). 3. Scholarship addressing equitable adoption includes:includes: Ralph C. Brashier, Children and Inheritance inin the Nontraditional Family, 1996 UTAH L. REV. 93, 172-74; Margorie Engel, Pockets of Poverty: The Second Wives Club-Examining the Financial [In]Security[ln]Securit of Women in Remarriages, 5 WM. & MARY J. WOMEN & L. 309,309,355-58 355-58 (1999); Susan N. Gary, Adapting Intestacy Laws to Changing Families, 18 LAW & INEQ. 1,I, 39--4039-40 (2000) [hereinafter Gary I]; Michael J. Higdon, When Informal Adoption Meets Intestate Succession: The Cultural Myopia of the Equitable Adoption Doctrine, 43 WAKE FOREST L. REV. 223 (2008); Adam 1.J. Hirsch, InheritanceInheritance Law, Law. Legal Contraptions,and the Problem of Doctrinal Change, 79 OR. L. REV. 527, 547-51 (2000); Kristine S. Knaplund, Grandparents Raising Grandchildrenand the ImplicationsImplications for Inheritance,Inheritance, 48 ARIZ.ARIz. L. REV. 1,I, 5-9 (2006); William G. Reeves, Inheritance by Equitable Adoption: An Overview of Theory and Proof, 57 J. MO. B. 130 (2001); Rein, suprasupra note 1; Rebecca C. Bell, Comment, Virtual Adoption: The Difficulty of Creating an Exception to the Statutory Scheme, 29 STETSON L. REV. 415, 416 (1999); Lisa M. Gunno, Comment, De Facto Marriage inin West Virginia: If thethe Court Recognizes the Relationshipfor for Alimony,Alimany, Why not forfor Probate?, 109 W. VA. L. REV. 867, 873-81 (2007); J.C.J., Jr.,Jr., Note, Equitable Adoption: They Took Him into Their Home and Called Him Fred, 58 VA. L. REV.REv. 727 (1972); Carolee Kvoriak Lezuch, Comment, Michigan'sDoctrine of Equitable Parenthood:A Doctrine Best Forgotten, 45 WAYNE L. REV. 1529 (1999); James R. Robinson, Comment, Untangling thethe "Loose Threads": EquitableAdoption, Equitable Legitimation, and Inheritance inin ExtralegalFamily Arrangements, 48 EMORY L.J. 943,954-67943, 954--67 (1999).(1999). 4.4. SeeSee infrainfra Part I. 5. The majoritymajority ofof state courtscourts recognize,recognize, atat least inin somesome contexts, thethe doctrine of equitable adoption.adoption. TracyTracy Bateman Farrell, Annotation, Modern Status of Law as toto Equitable Adoption or AdoptionAdoption by Estoppel, 122 A.L.R.5th 205, § 3(a)3(a) (2004)(2004) (discussing(discussing casescases fromfrom aa varietyvariety of statestate courts).courts). 6.6. SeeSee FrancesFrances H. Foster, The FamilyFamily Paradigmof of InheritanceInheritance Law,Law, 80 N.C. L. REV. 199, 206-08 (2001);(2001); GaryGary I,I, suprasupra notenote 3,3, atat 27. For examplesexamples ofof suchsuch statutorystatutory provisions,provisions, see UNIF. ADOPTION ACTACT (1994);(1994); N.Y.N.Y. DOM. REL. LAW § 117 (McKinney(McKinney 1999 && Supp.Supp. 2008).2008). HeinOnline -- 54 St. Louis U. L.J. 272 2009 2009]2009] AA SUGGESTED SOLUTIONSOLUTION TOTO THETHEPROBLEM OFOFINTESTATE INTESTATE SUCCESSION 273273 ThisThis ArticleArticle seeksseeks toto makemake knownknown thethe needneed toto changechange inheritanceinheritance lawlaw regardingregarding childrenchildren not bornborn oror legallylegally adopted intointo aa family,family, butbut raised, forfor somesome time,time, inin aa traditionaltraditional
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