Virtual adoption: not just for netizens.

• Author: Dolan, Brian R.
• Position: Florida

Sometimes a confluence of events conspires against an idea to make that idea seem preposterous. For instance, 20 years ago, the term "virtual" was understood to connote "nearly," or "practically," or "as good as." Twenty years later, with the advent and proliferation of the desktop personal computer, hand-held PCs, PDAs, and the iPhone, the term "virtual" has come to be understood as "computer-related," "geeky" or "nerdy," and "cyber" anything. To a segment of society that has been "virtually adopted," this is most unfortunate.

A Florida probate judge, who shall remain nameless, when confronted by an eager, young probate attorney who argued for the theory of virtual adoption for his client, rolled his eyes and visibly and audibly sighed in exasperation. As recently as the last few months, when one of the authors proffered the theory on behalf of a client, the presiding judge, who apparently had at least heard of the doctrine, asked "Does Florida recognize this?" Such is the general state of understanding of the doctrine of virtual adoption.

The client in both instances ultimately prevailed--after the respective courts were properly enlightened. To be sure, virtual adoption is known by other names: equitable adoption or adoption by estoppel, to name two. But it is the unfortunate moniker "virtual adoption" that has stuck most tenaciously to this little known, but useful, concept and which has caused attorneys and judges to put up barriers to the idea when confronted by a living, breathing client to whom the concept applies. What, then, is virtual adoption, and how can it best be applied?

Virtual Adoption Defined

Despite its regrettable name, virtual adoption is not a type of adoption practiced in the family law arena via the Internet. Rather, virtual adoption is a concept lying in the probate court, which allows for the virtually adopted child, who otherwise would be a stranger to his or her virtual adoptive parent's estate, to take under the estate as a natural or legally adopted child. Prior to 1943, the Florida Supreme Court "found little sympathy" for the doctrine of virtual adoption. However, in considering the authorities cited in the seminal case, (1) the court "became more impressed with its soundness" and recognized the doctrine in Florida.

No Florida court has specifically defined the term "virtual adoption." A good working definition, however, is "a court given name to a status arising from and created by contract where one takes and agrees to legally adopt the child of another but fails to do so." (2) While the term has not been specifically defined, the elements of virtual adoption are well established in Florida. The Fifth District Court of Appeal concisely listed the following elements necessary to establish an effective virtual adoption:

1. An agreement [to adopt] between the natural and adoptive parents;

2. Performance by the natural parent[s] of the child in giving up custody;

3. Performance by the child by living in the home of the adoptive parents;

4. Partial performance by the foster parents in taking the child into the home and treating the child as their child; and

5. Intestacy of the foster parents. (3) All five elements must be present, (4) and these elements must be proven by clear and convincing evidence. (5)

Hypothetical

John Q. Smith died intestate, survived by a stepdaughter by his second wife, and one "daughter," Jane Doe (her married name). The stepdaughter successfully petitioned the probate court for administration and has been appointed personal representative of the estate of John Q. Smith. The personal representative has filed a petition to determine beneficiaries seeking to exclude Jane Doe as a beneficiary under Mr. Smith's estate. This petition is based on allegations that respondent, Jane Doe, is not an adopted daughter of the decedent. The stepdaughter would be the only surviving heir of the decedent if Jane is deemed not to be a beneficiary of the decedent. (6) The respondent, Jane Doe, contends, however, that the petition is without merit as her standing to inherit is established under the doctrine of virtual adoption. Jane contends that she was virtually adopted by Mr. Smith in her childhood.

Elements Illustrated

An agreement [to adopt] between the natural and adoptive parents--The facts leading to the virtual adoption of Jane begin when she was found practically abandoned by her natural parents in her home. Through a series of events, Mr. Smith and his wife came to have custody of Jane, by the acquiescence of Jane's biological mother. Thereafter, the...