Should adoption be used to ensure an Inheritance?

This column first appeared in the San Antonio Express News on October 13, 2016. 


Dear Mr. Premack: I have an unusual situation. I was divorced many years ago after we had two children. After the kids grew up and moved away, I began to mentor a college student whose father had died. I consider him to be a son to me, and I know he considers me to be a father figure. I’d very much like to adopt him so he can inherit a share of my estate when I die. My two children will have to live with this decision. What steps should I take so that he can inherit from me? – G.V.


There are a variety of legal concepts you must consider. First, you can adopt an adult person with consent of that person. Since this young man is an adult, his mother does not have to give her consent. However, as a practical matter he should strongly consider his mother’s emotional reaction, even if they are not close. As a legal matter, he needs to know that if he is adopted by you then he may no longer inherit from his mother as an intestate heir. He will be giving up the parental relationship with his mother and giving up his status as her heir.


It is important to distinguish between adoption of an adult versus adoption of a minor. When an adult is adopted by another family, the adult loses the right to inherit from the intestate biological parent. Minor children (under the age of 18) who are adopted continue to have the right to inherit from an intestate biological parent. The focus is on the child’s age on the date of adoption rather than the child’s age on the date the biological parent’s death.


Second, official adoptions are court-based legal proceedings. Thus, adopting him will be a fairly slow and fairly expensive action. Broadly speaking, adoption need not always be a formal court-based procedure to have a legally binding effect. The concept of “adoption by estoppel” states that when an adult raises a minor child in their home and promises to treat that child like a natural born child, the child can later claim to have been adopted by estoppel, even though there was no court action. If the adoptive parent later dies intestate, that child (who may now be an adult) can claim inheritance rights.


But for an adult adoptee, court action is the only valid approach. Adoption by estoppel cannot be used for an adult adoptee, only minor adoptees. In the case Dampier v. Williams, decided in early 2016 in Houston, Dampier was 19 when Williams started acting like his father. They had a close relationship for 30 years. When Williams died intestate, Dampier claimed inheritance rights as a child adopted by estoppel. The court confirmed that Dampier was an adult – age 19 – when the relationship commenced, and ruled that adoption by estoppel was not possible. Inheritance rights may only be claimed by a person who was under 18 when the adoption by estoppel was initiated.


Consequently, you have two choices: 1) Adopt him in court, with the time and expense involved; or 2) Do not die intestate. See a qualified Estate Planning Attorney to make a valid Will or other estate plan like a Living Trust. In it, you can decide in a legally binding manner who will inherit your estate and in what shares. Just as you can leave a devise to a friend, to a charity or to a family member, you can also elect to leave a devise to this young man – even if he has never been adopted and cannot legally claim you as a parent. Consider discussing your decision with your biological children to avoid anger, shock and possible contests of your decision.

#AdoptionbyEstoppel #featured #Inheritance #Wills

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Paul Premack, 2019-2020 President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) is *Certified as an Elder Law Attorney ( CELA ) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in Texas and in Washington State, and handles San Antonio Probate and Bexar County Probate, Wills, Living Trusts, Estate Planning, and writes the legal column for the San Antonio Express News.

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