Luke, I Am Your Adoptive Father: Adult Adoptions and Inheritance - Contracting With Your "parents"

• Publication year: 2017
• Author: By Robert Barton, Esq.* and Mary K. deLeo, Esq.**

LUKE, I AM YOUR ADOPTIVE FATHER: ADULT ADOPTIONS AND INHERITANCE - CONTRACTING WITH YOUR "PARENTS"

By Robert Barton, Esq.* and Mary K. deLeo, Esq.**

I. INTRODUCTION

The adoption of a minor child is a familiar concept. Lesser known is the adult adoption, where an adult adopts another adult as his or her child.¹ Most states permit adult adoption, including California.

Adult adoptions may be done to formalize a parent-child relationship, such as in families that have foster parents or stepparents, or to reestablish a parent-child relationship between an adopted child and his or her birth parents. Adult adoptions, however, also alter inheritance and benefit rights. Most jurisdictions, including California, treat minor and adult adoptees identically to natural children for the purposes of inheritance and benefit rights.²

As with anything involving the potential transfer of assets, abuse of adult adoptions occurs. Enterprising individuals have attempted to use adult adoptions to alter inheritance rights under predictably absurd facts. In Delaware, an heir to the Gore-Tex clothing fortune adopted her ex-husband in order to increase the share of inheritance her "children" would receive from their grandparents.³ In Florida, a businessman facing a wrongful death lawsuit attempted to adopt his girlfriend to access funds held in a trust for his children.⁴ While neither of these efforts succeeded, these cases highlight the potential for abuse.

California's adult adoption statutes contain several shortcomings that create the potential for abuse. Practitioners should be aware of California's adult adoption framework so they can properly advise their clients when preparing estate plans or litigating cases involving adult adoptees.

This article will summarize the background of adult adoptions in California, the procedure to adopt an adult under current law, the applicable restrictions on adult adoptions, and the procedure to terminate an adult adoption once completed. The article will also examine the evolution of California law on adult adoptions and inheritance and the method to challenge an adult adoption after death. The article will conclude by examining shortcomings in California's statute that make adult adoptions particularly prone to abuse and which should be addressed by the Legislature.

II. ADULT ADOPTION PROCESS

A. Background

The right of adoption was not recognized at common law and, as a result, the right is defined by statute.⁵ Although laws pertaining to the adoption of minor children were enacted as early as 1851,⁶ adult adoptions were rare until the middle of the twentieth century, when they gained widespread acceptance across the country. By the 1950s, nearly all states had an applicable statute or case law authorizing adult adoptions.⁷ California added an adult adoption provision to the Civil Code in 1951.⁸

Adoptions of adults differ in fundamental ways from the adoptions of minor children, where the historical justification was to provide a "fresh start" to the adoptee or to formalize an otherwise existing familial relationship, such as a stepchild or a parent-child relationship between grandparent and child.⁹ While affection may play a role in some adult adoptions, the attendant alteration in inheritance rights oftentimes is the primary ? or even sole ? motivation behind an adult adoption. Adult adoptions also lack the obligations, responsibilities, and safeguards ordinarily in place in a minor child adoption, including the obligation of parental support, thereby facilitating the potential use of adult adoptions for fraudulent purposes.¹⁰

B. Adoption Procedure

In California, the procedures governing adult adoptions are codified in Family Code section 9300 et seq.¹¹

To initiate an adult adoption, the adoptive parent and adoptee must execute a written adoption agreement which states that the parties agree to assume towards each other the legal relationship of parent and child and to have all of the rights, duties, and responsibilities of that relationship.¹²

The adoption agreement must then be approved by the court. The prospective adoptive parent and the proposed adoptee may file the petition to approve the adoption agreement in the county where either person resides. The petition must include the following information:

1. " The length and nature of the relationship between the prospective adoptive parent and the proposed adoptee.
2. The degree of kinship, if any.
3. The reason the adoption is sought.
4. ...[W]hy the adoption would be in the best interest of the prospective adoptive parent, the proposed adoptee, and the public.
5. The names and addresses of any living birth parents or adult children of the proposed adoptee.
6. Whether the prospective adoptive parent or the prospective adoptive parent's spouse has previously adopted any other adult and, if so, the name of the adult, together with the date and place of the adoption."¹³

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The petition to approve the adoption agreement is then set for hearing. Unless the proposed adoptee is developmentally disabled, there are no explicit notice and service requirements for the petition.¹⁴ Instead, Family Code section 9323 states that the "court may require notice of the time and place of the hearing to be served on any other interested person and any interested person may appear and object to the proposed adoption." Because this provision is permissive, not mandatory, family members may not learn about the adoption until after the adoptive parent's death.

Unlike adoptions of a minor child, there is no mandatory investigation or report to the court by any public officer or agency regarding the circumstances of the proposed adoption, even though the court, in its discretion, may order an investigation.¹⁵ While the proposed adoptee and adoptive parent are required to be present at the hearing on the adoption petition, the statute allows an exception for either or both to appear by counsel if an appearance is "impossible."¹⁶

Although family law proceedings are ordinarily confidential, a hearing to approve a petition for an adult adoption may, in the discretion of the court, be open and public.¹⁷

At the hearing, the court must examine the parties (or their counsel) and find that the adoption is in the best interests of the persons seeking the adoption, that the adoption is in the public interest, and that there is no reason why the petition should not be granted.¹⁸ The court is allowed to consider any evidence, including inadmissible evidence, in making its determination on the petition.¹⁹ While implementation differs by judge and by county, hearings can be extremely short, with little to no fact-finding.

C. Restrictions

The adoption statute contains a few limited restrictions. First, the adoptee must be younger than the adopted parent.²⁰ Second, a married person may not adopt an adult, or be adopted, without the consent of his or her spouse, provided that the spouse is capable of giving that consent.²¹ Third, a person may not adopt more than one unrelated adult within one year of the person's or person's spouse's adoption of an unrelated adult, unless the proposed adoptee is the biological sibling of a person previously adopted or unless the proposed adoptee is disabled or physically handicapped.²²

D. Termination of an Adoption

Any person adopted under the provisions governing adult adoptions may file a petition to terminate the parent-child relationship.²³ (The adoptive parent does not have the same right to terminate the parent-child relationship.) Family Code section 9340, subdivision (a), requires written notice of the petition to the adoptive parent, but does not specify any period within which the notice must be given, or any particular form of notice. The petition to terminate the parent-child relationship must indicate all of the following: (1) the name and address of the petitioner; (2) the name and address of the adoptive parent; (3) the date and place of the adoption; and (4) the circumstances on which the petition is based.²⁴

If the adoptive parent consents in writing to terminating the parent-child relationship, an order terminating the relationship may be issued by the court without further notice.²⁵ If the adoptive parent does not consent, he or she must file a written response within 30 days of the mailing of the notice. The court must set the matter for hearing and may order an investigation.²⁶

III. EFFECT OF ADULT ADOPTION ON INHERITANCE AND BENEFIT RIGHTS

A. Intestate Succession

Once the adoption order is entered, the inheritance and benefit rights are the same for the adult adoptee as the adoptive parent's natural born children.²⁷ The adult adoption terminates the adoptee's inheritance rights from his or her birth parents (unless the adoption is by the spouse of a birth parent) for both intestate and testate succession.²⁸

With respect to the rules for determining inheritance rights for purposes of intestate succession, adopted persons and their issue, when appropriate to the class, are included in terms of a class gift or relationship.²⁹

Adult adoptees are also entitled to pretermitted heir rights.³⁰ For example, in Estate of Turkington,³¹ the decedent adopted one of two adult nieces he raised since childhood. The court found the newly acquired daughter became the decedent's pretermitted heir, nullifying a will he executed prior to the adoption in which he left his estate equally to his two nieces. The court found that the "change in status from niece to child is so momentous that the testator must make a new testamentary disposition absent a clear statement in the existing will that it was executed in contemplation of the change of status."³² In finding that the will did not provide for the adopted niece as a child, the court held that because "the niece relationship was the one declared in the will, the future status of child was not influencing the testator, if even foreseen" and further held that the adopted niece "was not provided for as the testator's child and was a...