An equitable adoption, also called constructive adoption, is a type of adoption recognized without a court order. Rather than a court order, the adoption is accomplished through actions or promises by the parents.
For example, if a parent takes a child into his home and treats the child as his own without going through adoption proceedings, the law will recognize this as an adoption and the parent must continue to act as the child’s parent.
An equitable adoption can be established through the actions of the parent and the adopted child. If the parent had held out the adopted child as his or her own throughout the child’s life, even if there was no formal adoption the child may be considered as an adopted child. Once the child is considered adopted by the non-natural parents, the legal relationship of the child’s natural parents is severed and the child cannot inherit from the natural parents.
In situations of equitable adoption, there is no formal court order which states that the rights and obligations of the natural parents have been terminated and that the adoptive parents must assume these obligations and rights. Because of this, parents will sometimes deny the adoption.
However, if the parent is found to have acted in such a way as to create an equitable adoption, the parent cannot refuse or deny the adoption. An action to enforce an equitable adoption is called adoption by estoppel, which means that the child brings an action to stop the parent or another from denying an adoption.
Issues concerning equitable adoptions and adoptions by estoppel usually arise:
- When the adoptive parent dies without a will and the child presents a claim to a part of the estate as an heir
- When the parent dies with a will but does not mention the adopted child
In these cases, the child will have to establish that a contract for adoption was formed through some actions or promises by the parent, and that the child was adopted without the legal procedures. Note that most states do not allow a child to be disinherited without an explicit statement that the child should get nothing.
An adopted child or children can inherit from their adopted parents just like any natural child will after it has been established that the child has been formally adopted or an equitable adoption has been formed. However, inheritance depends on whether the parent died with a will or without a will. If a parent dies with a will, the parent may leave property to anyone that he or she may choose. If a parent dies without a will, the adopted child may then inherit through intestate succession in the same way a natural child will.
The laws regarding equitable adoption and wills and estates are very complex and can vary drastically between states. If you believe that an equitable adoption existed between you and an adoptive parent, an experienced estate lawyer can advise you of your rights and options under the law. A lawyer near you can also represent you in court if needed.