Wednesday, October 15, 2008

Equitable Adoption Doctrine in Iowa Probate

People, for a variety of reasons, procrastinate on a variety of legal matters. A recent survey indicated that 55% of adult Americans do not have a will. Another legal issue that some individuals procrastinate on is adoption. If you place these two puzzle pieces together, you have the potential for an unfair picture.

For example, assume this scenario: H & W have a child together, C. Shortly thereafter, W dies and H remarries W2 while C is still a young child. Together, H & W2 raise C and treat C as their own child, even though W2 never formally adopts C as her own child. Later in life, H dies and all of his assets pass to W2 as joint assets. C continues to care for and treat W2 as their mother. W2 then passes away without having executed a will. Who inherits W2's estate? Or, more importantly, who should inherit?

Under the intestacy laws, C would not inherit from W2 as there is no legal status of a parent-child relationship as required to inherit under the intestacy laws. However, over the past 80-some years, the Iowa courts, as well as 26 other states, have considered and adopted a theory called "equitable adoption", sometimes called "adoption by estoppel" or "virtual adoption" or "constructive adoption". Basically, a good summary of the theory stated by the Missouri Court of Appeals in Gardner v. Hancock:
An adoption by estoppel is an equitable remedy to protect the interests of a person who was supposed to have been adopted as a child but whose adoptive parents failed to undertake the legal steps necessary to formally accomplish the adoption; the doctrine is applied in an intestate estate to give effect to the intent of the decedent to adopt and provide for the child.
In other words, the law won't punish a child for the mistake of the "parent" in failing to formally adopt the child through the legal system.

As the number of second marriages increase, in addition to "informal adoptions" and extended families as a result of cultural differences, as noted by Professor Higdon, and economic limitations, the argument of equitable adoption can be expected to increase in the court system.

3 comments:

deborah said...

Can I object to a co-executors fee's. I found out she had a secret meeting with a farm manager and an heir, about custom farming and selling the farm. She hid this from the other heirs and the other co-executor, I asked her about this meeting, and she said she did not attend this meeting. I called the farm manager and he said she did attend the meeting. I have been lied to over and over in this estate by one co-executor.

Matthew Gardner said...

Deborah-

You can object to fees, but a question that the court will likely have is what are the damages? Did the executor personally benefit in some way from this lie/meeting? Unfortunately, lying by itself may be inconsequential if there is no advantage or benefit.

Anonymous said...

Can nomination of an administrator t be changed ?