Hamilton County Law Library News NEWS

A Monthly Newsletter from the Hamilton County Law Library September 2010 Adult and Beneficiary Status: The Current State of Ohio Law

By Leon A. Weiss, Esq.; and Christine S. Reid, Esq.; Reminger Co., L.P.A.; Cleveland, Ohio. Reprinted with permission.

Consider the following hypotheti- Does Ohio Recognize Adult cal. Three adult children are po- ? Inside this : tential beneficiaries to a Trust Ohio first recognized adult Adult Adoption 1 created in Ohio in 1936. The adoptions in 1977 with the Trust contains the following lan- passage of R.C. 3107.02 , guage: which provides as follows: Tech Tip: Ohio 2 Capitol This Trust may be altered, (A) Any minor may be Connection amended or terminated in whole adopted. Law: 7 or in part at any time * * * (B) An adult may be adopted Program & Upon termination of this trust, the under any of the following con- Resources remaining assets shall be paid ditions: over to the said beneficiary * * * Upcoming Events B (1) If the adult is totally and A or in the case of his prior death C to his lineal descendants (if such permanently disabled; K there be) per stirpes * * *. (2) If the adult is determined to All three children were adopted be a mentally retarded person outside of Ohio. Two of the chil- as defined in § 5123.01; dren were adopted prior to (3) If an adult had established Hamilton County reaching the age of majority. The a -foster care or child- Law Library third child was adopted at age stepparent relationship with 18. This child had established a petitioners as a minor and the Hamilton County relationship with her adoptive adult consents; Courthouse while a minor. Is the third 1000 Main Street, (4) If the adult was, at the time Room 601 child a “lineal descendant” enti- of the adult's eighteenth birth- Cincinnati, OH 45202 tled to beneficiary status? To an- T:513.946.5300 day, in the permanent custody F:513.946.5252 swer this question, one must of a public children services analyze Ohio law regarding adult agency or private child placing Open Monday-Friday 8 - 4 adoptions, out of state adoptions, agency and the adult consents www.http://www.hamilton and the beneficiary status of (Continued on page 3) -co.org/cinlawlib/ Adoptees.

Page Hamilton County Law Library Newsletter Hamilton County Law Library News Tech Tip: Ohio Capitol Connection

By Julie Koehne, Systems Librarian

Ohio Capitol Connection offers:

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Bill Texts Executive Orders Bill Status and Legislative Activity State of the State Addresses Synopsis of Committee Reports & Hearings Ohio Supreme Court U.S. Supreme Court Ohio Constitution Ohio Court of Appeals Government Information Attorney General Opinions Ohio Register Ohio Elections Commission Ohio Administrative Code State Auditor Opinions Ohio Revised Code Board of Commissioners on Grievances & Legislative Pocket Directory Discipline Ohio News and Media Digests of Enactments Ohio Weather Task Force Reports Listen to Legislature Live Inspector General Reports Google - U.S. Govt. Search

Contact our reference staff and we will be happy to retrieve the information you request. Contact us via email at [email protected] or by phone at 513.946.5300.

Hamilton County Law Library Newsletter Page 2

Hamilton County Law Library News

(Adoption, continued from page 1) Ohio-7361, 804 N.E.2d 1044 (Prob. Ct. to the adoption. 2003), it was established that Ohio does not recognize “unfettered” adult adoptions and Does Ohio Recognize Out of State Adop- will not recognize an adoption which violates tions? public policy. An adoption decree which in- Ohio does recognize out of state adoptions. tentionally dilutes or diminishes an estab- R.C. 3107.18 sets forth the standard for rec- lished bequest will not be recognized. More- ognizing “foreign” adoptions: over, for the courts to recognize an adult adoption, the relationship between the adop- (A) Except when giving effect to such a de- tive and child must be established cree would violate the public policy of this during the minority of the person adopted. state, a court decree terminating the rela- Solomon v. Central Trust Co. of Northeast- tionship of parent and child, or establish- ern Ohio, N.A., 63 Ohio St. 3d 35, 584 ing the relationship by adoption, issued N.E.2d 1185, 36 A.L.R.5th 873 (1992). For pursuant to due process of law by a court further analysis of out of state adult adop- of any jurisdiction outside this state, tions, see also Barrett v. Delmore, 143 Ohio whether within or outside the United St. 203, 28 Ohio Op. 133, 54 N.E.2d 789, States, shall be recognized in this state, 153 A.L.R. 192 (1944). and the rights and obligations of the par- ties as to all matters within the jurisdiction What Effect Does an Adoption Decree of this state, including, without limitation, Have on Beneficiary Status? those matters specified in section The effect of an adoption decree on benefi- 3107.15 of the Revised Code, shall be ciary status is specifically set forth in R.C. determined as though the decree were 3107.15 : issued by a court of this state. A decree (A) A final decree of adoption and an inter- or certificate of adoption that is issued un- locutory order of adoption that has be- der the laws of a foreign country and that come final as issued by a court of this is verified and approved by the immigra- state, or a decree issued by a jurisdiction tion and naturalization service of the outside this state as recognized pursuant United States shall be recognized in this to section 3107.18 of the Revised Code, state. Nothing in this section prohibits a shall have the following effects as to all court from issuing a final decree of adop- matters within the jurisdiction or before a tion or interlocutory order of adoption pur- court of this state, whether issued before suant to section 3107.14 of the Revised or after May 30, 1996: Code for a person the petitioner has adopted pursuant to a decree or certifi- (2) To create the relationship of parent and cate of adoption recognized in this state child between petitioner and the adopted that was issued outside the United person, as if the adopted person were a le- States. gitimate blood descendant of the petitioner, for all purposes including and The courts have analyzed these statutory applicability of statutes, documents, and in- provisions in various cases. In Fifth Third

Bank v. Harris, 127 Ohio Misc. 2d 1, 2003- (Continued on page 4)

Page 3 Hamilton County Law Library Newsletter Hamilton County Law Library News struments, whether executed before or after effect on the “stranger to the adoption” doc- the adoption is decreed, and whether exe- trine. See Ohio Citizens Bank v. Mills, 45 cuted or created before or after May 30, Ohio St. 3d 153, 543 N.E.2d 1206 (1989) ; 1996, which do not expressly exclude an First Merit, N.A. Trustee v. Kelly, 2008-Ohio- adopted person from their operation or 303, 2008 WL 241259 (Ohio Ct. App. 9th effect; Dist. Summit County 2008). (3) Notwithstanding division (A)(2) of this Is the Retroactive Application of R.C. section, a person who is eighteen years of 3107.15 (A)(3) Constitutional? age or older at the time the person is The legislature intended R.C. 3107.15 (A)(2) adopted, and the adopted person's lineal and (3) to be applied retroactively. The retro- descendants, are not included as recipients active application of R.C. 3107.15 (A)(3) may of gifts, devises, bequests, or other transfers divest adult adoptees of their beneficiary of property, including transfers in trust made status. Because of this potential result, the to a class of persons including, but not lim- constitutionality of the retroactive application ited to, children, grandchildren, heirs, issue, of this code section must also be addressed. lineal descendants, and next of kin, for pur- The Ohio Supreme Court has set forth a two- poses of inheritance and applicability of stat- part test to determine whether a statute utes, documents, and instruments, whether should apply retroactively. Under this test, executed or created before or after May 30, 1996, unless the document or instrument Subscriber benefits expressly includes the adopted person by name or expressly states that it includes a Are you familiar with the many benefits person who is eighteen years of age or older included in your subscription to the Hamilton at the time the person is adopted. R.C. County Law Library? By joining the library, 3107.15(A)(2) recognizes adopted children you can: as beneficiaries unless the document or in- Access: to databases, including Lex- strument at issue specifically excludes isNexis , Shepards’ , CCH , Hein Online, and adopted persons. On the other hand, the over 70 Aspen /LOISLaw treatises in 16 legislature is more cautious with those per- substantive areas adopted as adults. Under R.C. 3107.15 (A)(3), an adult adoptee will not be provided Connect: to the wireless network through- beneficiary status unless the document or out the Law Library, videoconferencing capa- instrument expressly names the adopted bilities, and 5 conference rooms, equipped person or includes adult adoptees as a class with speaker phones, are available to our of beneficiaries. It should be noted that R.C. subscribers 3107.15 (A)(2) was initially enacted on Janu- Learn: Free CLE opportunities offered ary 1, 1977, and then amended on May 30, throughout the year: Visit our Law Library 1996. R.C. 3107.15 (A)(3) was enacted on Subscriber Services page to find out more. March 14, 2003. Prior to the amendment of http://www.hamilton-co.org/cinlawlib/ R.C. 3107.15 (A)(2) and the enactment of services.html R.C. 3107.15 (A)(3), the courts analyzed the applicability of these provisions and the (Continued on page 5)

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Hamilton County Law Library News

(Adoption, continued from page 4) lated the Ohio Constitution. In another deci- the court needs to determine the following: sion, the Cuyahoga County Common Pleas Court held that the retroactive application of (a) Whether there is an express intention to R.C. 3107.15(A)(3) was constitutional. Bor- apply the statute retroactively; rello v. Chisholm, Case No. CV 598719 (b) Whether the statute affects an accrued (Cuyahoga Cty. C.P. Aug. 5, 2008). In or- substantive right or whether is it merely re- dering summary judgment against the adult medial in nature. Bielat v. Bielat, 87 Ohio St. adoptee, the court focused on the trust lan- 3d 350, 2000-Ohio-451, 721 N.E.2d 28 guage, which provided that the trust could (2000). be “altered, amended, or terminated in whole or in part at any time.” Because the The constitutionality of R.C. 3107.15 has Trust could be terminated at any time, the been specifically addressed in several cases. court held that there was no vested interest Because there is an express intention to ap- and therefore, the retroactive application did ply the statute retroactively, the question ad- not affect a substantive right. dressed is whether the statute affects a sub- stantive, vested right. In Bank One Trust Co. Conclusion N.A. v. Reynolds, 173 Ohio App. 3d 1, 2007- Back to our hypothetical. Under R.C. Ohio-4197, 877 N.E.2d 342 (2d Dist. Mont- 3107.02 and 3107.18 , the out of state adult gomery County 2007), the issue was whether adoption of the third child is recognizable in or not an adult adoptee was a “lineal descen- Ohio. However, R.C. 3107.15(A)(3) prohibits dant” as defined to include “in every instance beneficiary status. The Trust document did both blood and adoption relationships.” The not expressly include this child by name or trial court held that R.C. 3107.15(A)(3) pre- expressly state that children adopted at age cluded the adopted adult from obtaining 18 or older are included in a class of benefi- beneficiary status because the trust did not ciaries. Moreover, based upon the language expressly define “lineal descendants” as in- of the Trust, the retroactive application of cluding adopted adults or name the adopted R.C. 3107.15(A)(3) is constitutional. adult by name. Ultimately, estate planners and probate liti- The Second District Court of Appeals re- gators should be familiar with the Revised versed the trial court holding that the retroac- Code sections regarding adult adoptions, tive application of R.C. 3107.15(A)(3) was out of state adoptions, and the effect of unconstitutional because it deprived the adoption decrees on beneficiary status. To adopted adult of his contingent interest in the insure beneficiary status of an adult Trust. The court analyzed the fact that an adoptee, the document or instrument must adopted adult would be included as a “lineal contain the name of the adult adoptee or in- descendant” prior to the enactment of the clude adult adoptees as a class of benefici- subsection, but not after the enactment. aries. Otherwise, the adopted adult may Moreover, they found that sub-section (A)(3) only be left with an argument that the retro- “directly and materially affected substantive active application of R.C. 3107.15(A)(3) is rights.” As a result, the court held that the unconstitutional. retroactive application of this subsection vio-

Page 5 Hamilton County Law Library Newsletter Hamilton County Law Library News

Staff Changes What Are The Blue Tags For? Glenna Herald, our capable Reference Librar- You may have noticed blue slips of paper in ian and editor of this newsletter, resigned in many books in the Library’s Main Room. Li- August to pursue other opportunities. Our brary staff are engaged in a year-long review patrons may remember that Glenna worked of that part of the collection. We are identify- here first in 2000-2001 and then returned in ing books that need to be withdrawn, re- 2007. We’re grateful for her service to library placed, or updated. The slips of paper are users and wish her the best. A search has an invitation to our patrons to offer com- begun for a new reference librarian. Once ments. Let us know if you think a book, hired, the reference librarian will provide re- though dated, is still essential or suggest an search guidance, edit the newsletter, coordi- alternative. We also offer quite a few trea- nate the CLE and training schedule, offer tises online through Aspen/Loislaw and Lexis training, lead the reference team, prepare so please ask for a librarian’s guidance if you email news flashes by practice area, and find a particular area of the collection lacking. more. We hope to announce our new hire in Sources might be available online instead. September. In the meantime, Julie Koehne and Chuck Kallendorf are staffing reference more hours and, collectively, we are making CLE Suggestions every effort to cover the bases. One of the tremendous benefits of a law li-

brary subscription is free or low-cost CLEs. If you have a suggestion for a CLE topic or Statewide Law Library Consortium speaker, please let Mary Jenkins know. We The law that created the county law library have several CLEs planned for the fall. resources board (CLLRB) as the library’s gov- Watch for details. erning board also created a statewide consor-

tium of CLLRBs. Mary Jenkins is a county commissioners association’s appointee to the Social Media @ The Law Library consortium’s board. The board held its first We’re practicing what we preach: Our latest two meetings and is planning to attend to its foray into social media is a Facebook fan statutory obligations which include negotiating page. Look for us on Facebook as Hamilton contracts that each county law library re- County Law Library and, even better, be- sources board may use for purchasing or ob- come a fan. (We know you are a fan al- taining access to legal research materials, ready, but announce it to the world!) We’re cataloging and facilitating the sharing of re- your “embedded law library”, offering con- sources, developing library collection guide- nections, announcements and news in a set- lines, and providing consultation. The Hamil- ting where many of our patrons spend time ton County Law Library expects that the new each day. We promise we won’t go crazy consortium’s mandate to negotiate contracts with posts. We’re all too busy for that! will result in cost savings and efficiencies over And follow us on Twitter, too, if you’re so in- the next couple of years. Especially since our clined. You’ll receive up-to-the-minute news revenue has decreased over the past two and information. We are @HCLawLib. years, we will appreciate group purchasing.

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Hamilton County Law Library News Family Law Resources A Better Way to End a We suggest the following resources for your As a public service, the Hamilton County family law research. Ask a librarian for addi- Law Library, in conjunction with the Cincin- tional guidance. Our strong collection in fam- nati Bar Association's Lawyer Referral Ser- vice, will present You and the Legal System: ily law also includes onsite computer lab ac- A Better Way to End a Marriage on Friday, cess to FinPlan: Planner, BNA’s September 10, 2010 at 12:00 noon at the Family Law Reporter, Baldwin’s Domestic Hamilton County Law Library . This program Relations Domestic Violence Law, plus is free and open to the public. Attorneys are online treatises that you can access 24/7 welcome to attend but please note that the session is intended primarily for the non- off-site. lawyer citizen. It will last one hour. Please pass the information along to clients and The 1040 handbook : a guide to income and as- colleagues as desired. set discovery / Jack Zuckerman ... [et al.]. John L. Heilbrun, a Cincinnati attor- KF6369 .A715 2008 ney and HCLL subscriber with over 30 years of experience helping clients

with family and marital law problems, Collaborative family law. Reference will speak about collaborative di- KFO94 .F354 O35 2008 vorce, including the following points: ♦ Use of common goals and interests to Divorce in the golden years : estate planning, resolve disputes related to terminating a spousal support, and retirement issues for clients marriage; at midlife and beyond / Leslie Ann Shaner. ♦ ’ control and decision-making KF535 .S49 2010 about the most important issues; ♦ Benefits of the Collaborative approach The domestic violence civil law manual : protec- as opposed to the adversarial/litigation tion orders and family law cases / American Bar process; Association, Commission on Domestic Violence ♦ The Collaborative process as a team ap- KF505 .J67 2007 proach to resolution of issues; ♦ Open and full disclosure and communi- cation; Handling divorce cases from start to finish [in ♦ Ohio] KFO100.A75 H36 2010 Working together for the benefit of all, particularly the children; ♦ Collaborative law as a self respecting, A judge's guide to divorce : uncommon advice client-centered approach. from the bench / by Roderic Duncan. KF535.Z9 D857 2007 Please call 513.946.5300 at the Hamilton County Law Library to reserve a seat. Lesbian, gay, bisexual and transgender family law / Courtney G. Joslin, Shannon P. Minter. KF505 .J678 2010 What are we missing? Please contact the library director, Mary The special needs child and divorce : a practical Jenkins, with any suggestions you have guide to evaluating and handling cases / Marga- ret "Pegi" S. Price. KF547 .P73 2009 to improve our print and electronic resources. 513.946.5300 or Understanding QDROs : and Divorce and tax : a [email protected] practical approach. / OSBA KFO100 .U56 2009

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Upcoming Events September 10: Collaborative Law: A Better Way to End a Marriage September 27: CLE . Watch for details. October 7: Hamilton County Law Library Resources Board meets October 22: You and the Legal System: Immigration Law November 10: Two Westlaw CLE opportunities. Watch for details.

Labor Day Holiday The law library will be closed on Monday, September 6, 2010 in observance of Labor Day.

September 2010 Law Library Newsletter Library Law 2010 September

Calendar Calendar • •

Family Law program & resources resources & program Law Family • •

Tech Tip: Ohio Capitol Connection Connection Capitol Ohio Tip: Tech • •

Adult Adoption Adoption Adult • •

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