Under California probate law, adopted children are treated no differently than biological children. So, for example, if a person dies without a will, his adopted and natural children are afforded the same status as heirs under California’s intestacy law. But that presumes the adopted children are, in fact, adopted in accordance with the law of California or another jurisdiction. What about children who are informally-i.e., not legally-adopted?
Many common law jurisdictions recognize “equitable adoption.” This means that if a person fulfills the role of a child, and the “parent” reciprocates, the courts may recognize a contractual relationship exists for the purposes of establishing intestate succession. As recognized by California courts, equitable adoption establishes the child’s right to receive property from the parent if he or she dies without a will.
It’s important to note that equitable adoption has no affect on estates where there is a valid will. Nor does it affect trusts. The only application of equitable adoption is to estates subject to intestacy law.
The Limits of Equitable Adoption
In 2002, the California Court of Appeal addressed the limits of equitable adoption doctrine. The case involved a woman, Nanette Leach, whose mother divorced and remarried. Leach’s step-father attempted to initiate adoption proceedings but was thwarted when her biological father could not be located. Leach declined to complete formal adoption proceedings even after she reached majority and no longer needed her biological father’s consent.
When Leach’s step-grandmother-that is, the mother of her step-father-died without a will, Leach asked the probate court to declare her an heir under the equitable adoption doctrine. (Leach’s step-father died years earlier.) The probate judge, and later the appeals court, declined to do so. In its opinion, the appeals court noted that equitable adoption could only establish a contractual right to receive property from the “parent”; it created no right of inheritance through the parent. Any contractual agreement between Leach and her step-father could not extend to third parties.
Different Rules In Different States
Equitable adoption is a common law principle, meaning it is established and maintained by judicial decisions. That means that individual state legislatures can modify or eliminate equitable adoption if they so choose. This was the case in Utah, where that state’s Supreme Court recently held equitable adoption-which the courts there had recognized since the 1960s-conflicted with the language of the Utah Probate Code, adopted by the legislature in the 1970s.
Basically, the Utah Supreme Court said the Probate Code defined “child” in such a way as to make any application of equitable adoption untenable. The Court added that equitable adoption doctrine, at least as defined, in Utah, was itself “vague” and “boundary-less.” The justices decided it was easier to simply “jettison” the whole thing.
In contrast to Utah, the California legislature wrote into its probate code a statement that “Nothing in this chapter affects or limits application of the judicial doctrine of equitable adoption for the benefit of the child or the child’s issue.” So the courts may continue to enforce equitable adoption as the facts warrant. But keep in mind, if you die without a will and leave property outside of California, such foreign property may be subject to that state’s intestacy law.
Ultimately, the best way to avoid legal wrangling over equitable adoption is to prepare a valid will (or trust) that clearly spells out who will inherit your property. If you want to treat someone as a child, even if they’re not as a matter of law, that’s your decision. Contact San Diego estate planning attorney Scott C. Soady today if you have any questions.