Laila J Kepler Passing on the legacy
family-centered
estate planning
Call today to schedule your
free confidential consultation*
(951) 265-9716

Estate Planning Newsletter

The Legal Doctrines of Equitable Adoption and Adoption by Estoppel

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.

  • Obligations of a Guardian
    In certain cases, a minor may need to be assigned a legal guardian either because a parent is not able to care for the minor, or because the existing guardian is not competent. When a guardian is appointed, he/she will have the same... Read more.
  • Donations of Property and Tax Deductions
    The U.S. government has long encouraged citizens to contribute to charity. One method of encouraging philanthropic giving is the allowance of deductions from income for federal tax purposes for donations to “qualified”... Read more.
  • Affixing a Value on an Estate
    Assets owned by a person at the time of their death, whether real or personal property, is commonly referred to as the decedent’s “estate.” After the person dies, the property or proceeds from the sale of such property... Read more.
  • Processing a Life Insurance Policy Death Claim
    The beneficiary of a life insurance policy is the person entitled to receive the death benefit of the policy when the insured person dies. In order to collect on a death benefit claim, the beneficiary must usually comply with specific... Read more.
Estate Planning News Links
Share This Page:
Our law firm represents estate planning clients from Riverside County, North County San Diego, Temecula, Murrieta, Lake Elsinore, Canyon Lake, Wildomar, De Luz, Fallbrook, Bonsall, Escondido, Valley Center, Rainbow, Hemet, Riverside, Menifee, Sun City, Canyon Heights, Canyon Lake, Quail Valley, Pechanga, and Pala. Our law firm focuses on California estate planning, wills, trusts, estates, probate administration, trust administration, asset protection, and entity formation. Practicing as an estate planning attorney, trust attorney, and probate attorney, Laila Kepler guides her clients through life's changes.