Equitable Adoption Lawyers

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 What is Equitable Adoption?

Equitable adoption is a legal process that is utilized in some states to create inheritance rights for a child. The legal doctrines of equitable adoption generally occurs, when a person taking care of a minor child passes away. But keep in mind that the decedent may have died without a will and the child presents a claim to all or part of the estate based on the doctrine. If the decedent passes away with a will and the child was not mentioned in the will, the child can still claim for a portion of the parent’s estate on the basis of being an omitted or pretermitted child.

Equitable adoption (also known as putative or constructive adoption) happens in a situation where a parent makes certain promises or acts in a certain manner to make a contract between the parent and child. Equitable adoption happens without a formal legal procedure, meaning, a parent can say or do certain things that result in the adoption of another person as his or her child even though there is no court order establishing the adoption.

For instance, a parent could take a minor into his or her home, and act as if they are the parent of the child for many years, all without ever going to court to formalize this arrangement. In such circumstances, there is no court order which formally dictates that the rights and obligations of the birth parents have been terminated and that the adoptive parents must assume these obligations and rights. Therefore, instead of being a matter of law, the principles of equity hold this parent as if she or he had formally adopted the child.

Adoption by estoppel occurs when a parent tries to deny equitable adoption. For example, If a parent has taken a child into his or her home, and acted as the parent of that child for a number of years, even without a formal adoption procedure, that parent is prevented from then denying parentage by adoption of estoppels. This allows a claim or remedy for the child who was not legally adopted but parented for many years.

The legal doctrines of equitable adoption and adoption by estoppels generally arises when a person who took care of a minor child for many years dies. The decedent may have passed away without a will and the child can have a claim to all or part of the estate based on one of these doctrines. If the decedent died with a will and the child was omitted from the will, the child may still present a claim for a portion of the parent’s estate on the basis of being an omitted or pretermitted child. It is based upon the equitable notion that the law should be recognized as complete under specific circumstances.

What are the Contractual Requirements Regarding Equitable Adoption?

An actual agreement (does not need to be in writing) must have existed between the biological parents and those who planned to adopt the child. Similarly the following are some contractual requirements for these types of situations:

  • Full custody of the child was given up by the birth parents to the person(s) seeking to adopt;
  • The child to be adopted actually moved in with the intended adoptive parents;
  • The “new” parents actually began raising the child as their own;
  • The adoptive parents later died intestate (without a will);
  • Under this type of adoption, the child involved can inherit from the parents who had intended to adopt him or her but not through them; and
  • The (intended) adoptive parent is not allowed to inherit from the child – nor through him/her.

Furthermore, it has been debated that “equitable adoption” does not actually establish a parent-child relationship. Instead, this equitable principle creates a possible cause of action for the equitably adopted child to bring a suit for his or her share of an intestate person’s property, based upon breach of contract grounds.

Moreover, if you want to adopt a child, you need to make all the legally required arrangements to meet the local state laws for the adoption to go through. Courts generally expect such arrangements to be made in advance to ensure that the child’s best interests are priority. If close family members are contesting your actions, you need to consider other alternatives that may be beneficial for the child in the long run. However, the law will usually honor the birth parents’ wishes, unless a child is going to be mentally disturbed by the arrangement.

In basic terms, the judicial doctrine of “equitable adoption” recognizes a valid parent-child relationship in the absence of a formal adoption procedure. Therefore, it holds a person who has acted like a child’s parent for a number of years (without ever formalizing the adoption of the child) to the same rights and obligations as an adoptive parent would have.

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 deny the obligations imposed upon them under the principles of equitable adoption. It creates a viable claim for the child that was adopted by equity.

What are the Rights and Obligations of Adoptive Parents?

A formal, legal adoption terminates the rights and obligations of the birth parents toward their child. Similarly, adoptive parents assume the rights and obligations of a child’s birth parents and become primarily responsible for the health, safety, education, and welfare of the child.

However, once a child has been legally adopted, the child usually has no right of inheritance from the estate of his or her birth parents. But, the adopted child generally gains the right of inheritance from the estate of his or her adoptive parents.

In cases when a parent dies without a will, his or her estate is distributed according to the state’s intestacy laws, which dictate the order of distribution of the estate among a decedent’s heirs. The inheritance rights of adoptive children are usually similar to the inheritance rights of a decedent’s birth children under the laws of intestacy.

However, an exception to the rule is that while adopted children are typically treated as the birth children of adopting parents (inheriting as birth children would under the intestate scheme), adult stepchildren and foster children in many states are not entitled to inherit in the event of inheritance, 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 met:

  • The relationship started 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 (for example, consent).

When Do I Need to Contact a Lawyer?

If you and your spouse have adopted a child but have not completed a formal adoption process. It may be useful to reach out to a local adoption attorney to figure out your legal options. You would want to be able to provide for that child, even after your passing therefore forming a will is also necessary if not required for these types of situations.

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