The Succession Rights of Adopted Adults: Trying to Fit a Square Peg Into a Round Hole

• Publication year: 2022

43 Creighton L. Rev. 815. THE SUCCESSION RIGHTS OF ADOPTED ADULTS: TRYING TO FIT A SQUARE PEG INTO A ROUND HOLE

THE SUCCESSION RIGHTS OF ADOPTED ADULTS: TRYING TO FIT A SQUARE PEG INTO A ROUND HOLE

PETER T. WENDEL (fn*)

I. INTRODUCTION

Hypothetical: assume Howard meets Wendy, they fall in love, and they get married. Thereafter Howard dies, and then his father, Fred, dies with no surviving spouse. Can Wendy inherit from Fred? No. Spouses have limited inheritance rights. They can inherit from each other, but not through each other.(fn1)

Hypothetical: assume Howard meets Wendy, they fall in love, but instead of marrying her, Howard adopts her. Thereafter Howard dies, and then his father, Fred, dies with no surviving spouse. Can Wendy inherit from Fred? Yes. As a general rule, an adopted adult is treated the same as an adopted child with full inheritance rights.(fn2) The adoptee has the right to inherit from and through the adoptive parent, and the adoptive parent has the right to inherit from and through the adoptee.(fn3) Wendy would have the right to inherit from and through Howard, permitting her to share in the distribution of Fred's intestate estate. Why? Does it make sense to award an adopted adult greater inheritance rights than a spouse?

The traditional analysis of the issue of the inheritance rights of an adopted adult has focused on the issue as a variation on the classic adoption scenario. Inasmuch as the legal effect of an adoption is to create a legally recognized parent-child relationship,(fn4) the issue becomes whether there is any reason not to treat an adopted adult the same way as an adopted child. Finding none, the traditional analysis grants the parties the full inheritance rights that attach to a classic parent-child relationship.(fn5) The traditional analysis is consistent with a formal, status based analysis of the issue.(fn6)

The problem with the traditional analysis of the issue of the inheritance rights of an adopted adult is the way the issue is framed virtually dictates the conclusion. By presupposing that an adult adoption creates a parent-child relationship, the analysis over-focuses on the legal status of the parties and fails to take into proper consideration the underlying relationships between the parties. The status of the parties is only relevant to the extent it represents the underlying relationship between the parties in the paradigm scenario-inheritance rights are based on paradigms. The nature of the underlying relationship in the paradigm scenario is what justifies the presumed intent and corresponding inheritance rights that attach themselves to the status based relationship.(fn7) A more intent based, functional approach to the different familial paradigms should focus on the nature of the underlying relationship between the parties.

The nature of the underlying relationship is important because virtually all inheritance rights come in two sizes: full and partial. Full inheritance rights permit the parties to inherit from and through each other.(fn8) Partial inheritance rights permit the parties to inherit from each other, but not through each other.(fn9) All heirs have full inheritance rights save one-spouses.(fn10) This distinction is consistent with the difference in the nature of the underlying relationships. Historically all heirs were related by blood, and therefore all heirs were members of the same extended family, save one-spouses. Spousal relationships are "add-on" relationships.(fn11) Spousal relationships are between two consenting adults, who consider themselves equals and enter into a committed relationship. A spousal relationship is not intended to affect or displace any relationship either spouse has with his or her respective family members, it is intended to be in addition to those relationships. Accordingly, spousal inheritance rights are "addon" inheritance rights, not substituted inheritance rights. Each spouse's right to inherit from the other is in addition to that spouse's pre-existing inheritance rights. The additional inheritance rights do not affect or displace any pre-existing inheritance rights.(fn12) Each spouse retains full inheritance rights with that spouse's respective underlying family members.

Inasmuch as inheritance rights are a function of the underlying relationship in the paradigm case, an analysis of the issue of the inheritance rights of an adopted adult should start with the nature of the underlying relationship between the parties in the paradigm case. In particular, in the paradigm case, is the underlying relationship between an adopted adult and the adoptive parent(s) more like a spousal relationship or more like a parent-child relationship? The difficulty in analyzing that question is that there are a number of reasons one might adopt an adult.(fn13) In light of these different reasons, and consistent with the status based approach, the law of inheritance has simply assumed that it is best to treat the adopted adult the same as an adopted child. The different adult adoption scenarios, however, can be grouped into three sub-paradigms: (1) the same-sex partner adult adoption paradigm; (2) the heir designation adult adoption paradigm; and (3) the stepparent/foster parent adult adoption paradigm.

The paradigm relationship underlying the same-sex partner adult adoption scenario involves two consenting adults, who consider themselves equals and seek legal recognition of their committed relationship that they consider a spousal type relationship but the state refuses recognize.(fn14) The same-sex partners' relationship is much more like a spousal relationship than a parent-child relationship and should be treated as such for inheritance rights purposes.(fn15)

The paradigm relationship underlying the heir designation adult adoption scenario is a relationship between two individuals that typically began after both had reached the age of majority, and the adopting party is seeking to qualify the adoptee as an heir under a testamentary instrument of a third party.(fn16) Although this relationship is not as analogous to a spousal relationship as the same-sex adult adoption scenario, it is closer to the spousal relationship than it is to the classic parent-child relationship. Accordingly, the relationship should be treated as such for inheritance rights purposes.(fn17)

The stepparent/foster parent adult adoption scenario, however, is more like a classic parent-child relationship. In the typical stepparent/foster parent adult adoption scenario, the adoptee, while a minor, lives for a period of time with the adopting parent, as a regular member of the adopting parent's household, but the adoption does not occur until after the adoptee reaches the age of majority. This relationship is analogous to the classic parent-child relationship and should be treated as such for inheritance rights purposes.(fn18)

Analyzing the issue of the inheritance rights of an adopted adult from the functional perspective of the underlying relationships in the paradigm scenarios and the presumed intent of the parties that flows from those relationships, it becomes apparent that the relationships underlying the different adult adoption sub-paradigm scenarios can be differentiated so that the corresponding inheritance rights more closely match the presumed intent of the parties. The general rule should be that adopted adults inherit from each other, but not through each other, and do not qualify under a class gift in a testamentary instrument executed by a third party unless the instrument expressly includes adopted adults or the adoptee is specifically named as a beneficiary. An exception, however, should be recognized for adult adoptions where the adoptee lived for a period of time while a minor with the adoptive parent as a regular member of the adoptive parent's family. In such stepparent/foster parent adoptions, even though the adoption does not occur until the adoptee is an adult, a parent-child relationship should be recognized.(fn19) Such a statutory scheme would better reflect the presumed intent of the average decedent.

II. HISTORICAL AND THEORETICAL BACKGROUND: STATUS APPROACH VS. CONTRACT APPROACH

A. STATUS BASED APPROACH

One of the great-and on-going-debates in the law is whether legal rights and obligations should be assigned based on status or contract.(fn20) The status approach is typically characterized by a formalis-tic analysis focusing on strict, rigid objective requirements, usually associated with a legally recognized relationship that facilitates determining whether a person or situation is entitled to a standardized set of rights and/or obligations.(fn21) Under a status based approach, a particular set of rights and/or obligations automatically attach themselves to the legally recognized status, and often those rights and obligations can be achieved only by entering into the legally recognized status.(fn22)

Analytically, the status based approach is also a "box-based" approach. Under a status based approach, there are a limited number of boxes into which a situation legally can be placed. The situation is analyzed to determine into which box it fits. Once it is determined in which "box" the situation or relationship belongs, the situation or relationship is assigned all the rights and/or obligations associated with that box.(fn23)

B. CONTRACT BASED APPROACH

In contrast, the contract based...