ADOPTING ADULTS: An Estate Planning Device For Gay Partners

Donald Blackwell was an eighty-eight year-old man who had never married, and thus had no spouse to whom to leave his estate. Nor did Donald have any children who might have become his heirs — that is, not until he decided to adopt his seventy-two year-old friend, Gordon McKesson.

Donald adopted Gordon in 1994, and died in 1997. Before he died, Donald was the lifetime beneficiary of a trust established by his father in 1932. The trust instrument dictated that when Donald died, the principal (or remainder) of the trust would go to his children, if any survived him, or to Silvia, if Donald died childless.

Although he neither sired nor raised children, Donald did not die "childless" if his adoption of Gordon is valid. Thus, the validity of the adoption determines whether Gordon or Silvia is entitled to the remainder of the trust.

After Donald died, Gordon made a claim to the trust assets, worth an estimated $660,000. Silvia filed a lawsuit questioning the validity of the adoption, based on her allegation that Donald and Gordon were gay lovers and the fact that Florida law expressly prohibits a homosexual from becoming an adoptive parent.

The trial court dismissed Silvia's lawsuit to set aside the 1994 adoption because too much time had passed. But a panel of three appellate judges recently reinstated her case, ruling that she can continue her lawsuit.

Silvia now needs to prove that Donald was a homosexual in order to invalidate the adoption. (Interestingly, the law does not on its face prevent bisexuals from adopting, so some have suggested that Gordon need only counter with evidence that Donald had at least one sexual encounter with a woman to preserve the adoption).

Almost every state has a statute providing for the adoption of adults. And, unlike with the adoption of minor children, an adult adoption proceeding is uncomplicated. Most states permit an adult to be adopted based solely on his or her consent.

In contrast with adoptions of children, states have expressly or impliedly dispensed with the requirement that an adult adoption be in the adoptee's best interest, or that there be evidence of a pre-existing or planned conventional parent-child relationship. Moreover, because the adoptive parent of an adult incurs no legal obligations, there is little if any inquiry by the state into the parent's fitness, or his or her motive for adoption.

A few courts have refused to permit gay lovers to adopt one another–although the statutes they were interpreting did not dictate any such restriction. The most well known case reading such a restriction into the law is one decided in New York in 1984, Matter of Adoption of Robert Paul P. In that case, the court held that a man could not adopt his gay lover because the presence of a sexual relationship was incompatible with the presence of a parent-child relationship. But most courts to consider the issue have held to the contrary, approving adult adoptions within the context of a sexual relationship.

Florida is unusual in that its statute expressly disallows a homosexual person from adopting anyone–adult or child–regardless of whether there is a sexual relationship between the adopter and the adoptee. Although there has been a flurry of attempts to enact similar legislation in other states in the past two years, none has been successful.

Finally, although a few courts have considered the sexual orientation of a prospective parent as one factor in determining whether an adoption would be in the best interest of a child, such an inquiry is generally not made for an adult adoption.

Perhaps the most common motivation for adult adoptions is to establish inheritance rights for the adoptee. Those rights are established in two significant ways.

First, adoption gives the adoptee the right to inherit from the adopter under the laws of intestacy. Most states give adult adoptions the same effect. When a person dies intestate — that is, without a will — state law dictates who can inherit, and in what order of preference. As a general rule, only blood relatives inherit. The only exceptions to that rule are legal spouses and adopted children. (Thus, for a gay person in a state where gay marriage or a similar bond is illegal, the only exception effectively will be adopted children).

Under the laws of intestacy, spouses and surviving children–whether adopted or biological–are preferred over parents, siblings, and all more distant relatives. Thus, the adopted, adult child of an unmarried, intestate decedent (the estate law term for the deceased) will take from the estate's assets to the exclusion of all other relatives.

Second, for the decedent who does not die intestate, but rather makes a will and in it leaves property to the adoptee, adoption gives some protection against a will contest.

The explanation for why this is, is slightly complex. Wills that bequeath assets in an "unnatural" way are vulnerable to challenge on the grounds of undue influence, fraud, or lack of capacity. Wills leaving money to a gay lover, for example, are particularly at risk. But there is a catch: only someone with standing (that is, the proper legal status to sue) can bring such a challenge.

But what if the only intestate heir is the same person to whom you want to make a bequest in your will? The result is that no one will have standing to challenge your bequest — which is exactly the result you, in writing the will, desire.

Adult adoption attempts to accomplish this very result. By adopting someone who would automatically go to the front of the line for inheritance purposes in the event of intestacy, a decedent can deprive other angry relatives of standing to contest the will. Thus, an individual who bequeaths assets to a lover (gay or otherwise) can sometimes protect that estate plan by adopting the beneficiary.

Do a decedent's other relatives have any recourse at all when an adopted child has been interposed between them and the decedent's money? Only one: They can challenge the validity of the adoption. If they can successfully challenge the adoptive relationship, they can nullify its effect on inheritance — which is exactly what Silvia Rickard is trying to do in her case.

Although for many individuals adult adoption serves as a useful estate planning tool, there are some pitfalls.

From the adopting parent's point of view, one possible pitfall stems from the fact that adoptions are generally irrevocable. Thus, just as an adoptive parent of a minor child cannot give back a child who does not turn out the way the parent planned, an adoptive parent of an adult is similarly stuck.

There is no analog to divorce for adoption. Thus, for inheritance purposes, this irrevocability has the effect of giving the adoptee permanent standing to challenge any will leaving the estate to others — in addition to the right to inherit where there is no will.

From the adopted individual's point of view, one possible pitfall comes from the fact that, once adopted, he or she will generally lose the right to inherit from his or her biological parents. Thus, although an adult adoptee gains the inheritance rights discussed above, he may do so at the expense of losing others.

In some states, there is also the risk that an adult adoption between lovers may expose the "parent" to prosecution for incest. Although many incest statutes apply only to consanguineous ("blood") relationships, some apply to all legally sanctioned parent-child relationships.

Unfortunately for Gordon, Florida is perhaps the worst place for his adoption to have taken place. In many other states, Silvia would have little or no chance of setting aside the adoption in order to get to the trust assets. But in Florida, if Silvia can prove Donald was gay, Gordon will have to rely on a constitutional challenge to the state statute that prohibits a homosexual person from adopting to preserve his inheritance.

But what about other states that, unlike Florida, do want to allow gay partners to inherit — or that simply want to allow non-marital partners, more generally, to do so? For those states, is adult adoption the best mechanism to attain this result? Not at all, though it is better than nothing.

There are other, less crude mechanisms, even short of recognizing same-sex marriage, that states could use to protect the inheritance rights of non-marital partners. Hawaii and Vermont, for example, permit couples who are not permitted to marry to register as reciprocal beneficiaries, in order to bestow inheritance rights on one another. Parties registered as being in such a relationship can unilaterally "unregister" to eliminate those rights — averting the irrevocability pitfall, discussed above, that adult adoptions present. Such statutes are a sensible, politically feasible solution to this problem, at least for now.