November 23, 2010
Beekman: "Same-Sex Second-Parent Adoption and Intestacy Law: Applying the Sharon S. Model of 'Simultaneous' Adoption to Parent-Child Provisions of the Uniform Probate Code"
Jason Carey Beekman has posted "Same-Sex Second-Parent Adoption and Intestacy Law: Applying the Sharon S. Model of 'Simultaneous' Adoption to Parent–Child Provisions of the Uniform Probate Code" (96 Cornell L. Rev.) on SSRN. Here is the abstract:
Sarah, an eight-year-old girl, could not wait for her third-grade field trip to the Museum of Natural History. Best of all, her mother, Jill, who normally worked both a full-time job during the week and a part-time job on the weekend, took the day off to chaperone the trip. Just after pulling out of the elementary-school parking lot, a truck came speeding down the road and struck the school bus carrying Sarah’s class. Sarah was severely injured and rushed by ambulance to the nearby hospital. Jill, uninjured, held Sarah in the ambulance and carried her into the emergency room. Within minutes, Jill found herself removed to the waiting room without ever speaking to a doctor about Sarah’s condition. Although Sarah has always known Jill as her mom, legally, Jill is merely a stranger. Patty, Sarah’s biological mother and Jill’s partner, is the legal parent and the only one with the authority to make medical decisions on behalf of Sarah.
Due to a combination of state marriage laws and adoption statutes, most same-sex couples with children must make a very difficult decision - choosing which parent should be the legal parent. Most adoption laws state that when a natural parent participates in an adoption, this participation completely severs his or her legal rights. These laws leave the meaning of participation ambiguously broad and inclusive of processes such as second-parent adoption. Jill’s adopting Sarah would therefore completely divest Patty’s legal parentage. Although state adoption laws often have a spousal/stepparent exception, which allows second-parent adoption without severing the biological parent’s legal parent-child relationship, this exception does not provide a solution to most same-sex couples living in states that do not provide legally effective same-sex partnerships. Despite sharing equal parental responsibility and raising Sarah together from an early age, Patty and Jill must decide who will be Sarah’s legal mother.
The United States is currently enmeshed in a national debate over same-sex marriage. The debate is occurring in courtrooms as frequently as it occurs at the polls and in state and national legislatures. However, the legal system must address “trickle down” issues stemming from, but extending beyond, the task of simply determining the particular legal status that laws grant to a homosexual relationship. One of the major trickle down issues, though often left out of the public discourse, concerns parental determination for children of same-sex couples. Left even further outside pundit discussions, however, is how this parental determination for children of same-sex couples affects the children’s inheritance rights under the laws of intestate succession. The latter concern is the principal subject of this Editorial and the full-length Note on which it is based.
Second-parent adoption, in theory, provides an opportunity for a nonbiological parent to forge a legal relationship with his or her partner’s biological child (most of whom are either from a previous relationship or born to the couple through in vitro fertilization, surrogacy, or another similar alternative method). While second-parent adoption allows a heterosexual family with a stepparent to ensure a legal relationship between the child and both parents, similarly situated homosexual couples must overcome several obstacles. The most significant obstacle is what is known as the “cut-off provision,” which is present in most state adoption statues. This provision leads to the Jill and Patty predicament - second-parent adoption severs the legal parent-child relationship between the child and biological parent while forging a legal relationship between the child and nonbiological parent. The spousal/stepparent exception that prevents divestment of the legal relationship between the biological parent and child during a second-parent adoption remains unavailable for most same-sex couples living in states that do not grant the legal status of spouse to same-sex partners.
The Note on which this Editorial is based analyzes the impact of the cut-off provision on same-sex couples and their children, focusing on the impact this legal doctrine has on intestacy law. Principally, the Note discusses the parent-child provisions in the Uniform Probate Code[1. UNIF. PROBATE CODE (2002).] and argues that the “simultaneous” adoption solution, which Sharon S. v. Superior Court[2. 73 P.3d 554 (Cal. 2003).] articulates, should extend beyond the context of adoption and parentage laws to the analogous cut-off provisions in intestate laws. When read to maintain legislative intent and ensure the best interest of the child, provisions in the Uniform Probate Code defining a legal parent-child relationship for the purposes of intestate succession should follow a presumption of simultaneous adoption. Courts should interpret the cut-off provision as a default, but waivable, benefit for the adoptive parent and not as a mandatory requirement. In the context of same-sex couples seeking second-parent adoption, this Editorial and the Note on which it is based proffer simultaneous adoption in lieu of sequential adoption because simultaneous adoption would allow an adoptive parent to consent to the maintenance of the legal relationship between the natural parent and the child, meaning that a nonbiological same-sex partner’s adoption would not sever the right of the child to inherit from the biological parent.
The debate surrounding second-parent adoption and the determination of legal parenthood directly impacts the law of succession. Legal recognition of a parent–child relationship is vital for both intestacy and testacy purposes. If a succession document does not provide an adequate definition, a court will look to intestacy laws for assistance in determining the meaning of terms like “child” and “descendent.” More importantly, however, is how a state’s probate code defines a parent-child relationship in its intestacy laws, as most people die intestate.
Similar to adoption laws, no federal law of succession exists in the United States: state law governs property succession and estate laws. Although state probate statutes vary, the Uniform Probate Code (UPC) is representative of most state probate provisions. The UPC articulates the law of intestate succession and provides substantive rules regarding execution and revocation of wills and other such instruments. If a state adopts the UPC, then the UPC defines the parent-child relationship for all purposes in the state, including for intestacy, unless the law of the state provides otherwise. However, recent UPC amendments, where adopted, explicitly provide otherwise and will govern for intestacy purposes.
A critique of current intestacy statutes follows a common critique of state parentage laws: they fail to reflect the reality of the changing landscape of the American family. Same-sex second-parent adoption, for example, is a direct affront to the entrenched model in estate law that defines succession in terms of blood ties. The 2008 UPC Amendments attempted to expand the definition of parent-child relationships to include increasingly emerging nontraditional family structures.[3. See Lee-ford Tritt, Sperms and Estates: An Unadulterated Functionally Based Approach to Parent-Child Property Succession, 62 SMU L. Rev. 367, 407, 379 n.54 (2009).] However, the overly complicated amendments maintain the sanguinary nexus test, only expanding the scope of the legally defined parent–child relationship to include (a) children of an adjudicated legal parent, (b) adopted children, (c) nonmarital children, and (d) a limited exception for stepparent and intrafamily adopted children, as well as other previously unrecognized relationships. Thus, although seeking to “redefine” the existing definition of parent-child relationship, the 2008 UPC Amendments still retain the relic of the sanguinary nexus test and do little to address family structures that fall outside of the traditional family structure.
Two of the new amended provisions, UPC Sections 2-118 and 2-119, specifically address adopted children. However, these amendments do not adequately address either the emerging issue of second-parent adoptions by gay and lesbian couples and the interplay with state marriage or partnership laws. The Amended UPC sections severely limit the right of adopted children to inherit from their nonbiological parents, providing a right to inherit only where the biological parent’s spouse is adopting the adoptee. Stemming from the same intent as state adoption laws - that is, to preserve the new adoptive family against claims from the severed biological parent - the UPC provides that for intestacy purposes, an adoptive child is the child of the adopting parents and not of the child’s biological parents.[4. Id. at 409.] Therefore, adoption cuts off the right of inheritance between the adopted child and the biological relatives, thereby effectuating the “fresh start” policy.
Thus, adoption, for intestacy purposes, cuts off the right of inheritance as between the adopted child and the biological relatives and creates inheritance rights in the adopted child’s adoptive family. Similar to state adoption laws, the UPC provides several exceptions to the rule that adoption cuts off inheritance rights between the adopted child and the genetic parents.
One exception continues a provision that existed in the UPC before the 2008 Amendments. In stepparent adoptions, the parent who is no longer a legal parent (the parent who died or gave up parental rights) remains a parent for inheritance by the child or a descendent of the child from or through the parent. Following a stepparent adoption, the biological parent who is no longer a legal parent will not inherit from the child, but a child will still inherit from or through that biological parent, even if the parent permitted the adoption of the child by the child’s stepparent. Just as in state adoption laws, the UPC provides exceptions to the “fresh start” divestment policy - including the stepparent exception and the spouse exception.[5. UNIF. PROBATE CODE § 2-119(b), (c) (2008 Amendment).] These exceptions, as well as the exception for children that a relative or surviving spouse of a relative adopts or after the death of both biological parents, allow the child to continue to inherit from or through the biological parent.
These exceptions do not cover second-parent adoptions by unmarried couples - a biological parent will cease to be a parent for intestacy purposes if his or her unmarried partner adopts the child. Thus, analogous to state adoption laws, many same-sex families are left unprotected. In states where same-sex marriage or other legal recognition of same-sex relationships is not available, the UPC would limit the rights of that child to the intestate succession of one of the parents. In effect, the parents would have to choose who would be the “legal” parent under the parent-child definition of the UPC, which would mean deciding which parent the child would automatically inherit from, which parent’s will the child would have standing to contest, and which parent the child would be an interested heir of. For example, if the biological mother in a lesbian couple wants her partner to adopt the child, the biological mother risks her child being unable to inherit from the biological mother because this scenario does not fit one of the exceptions to the 2-119 (a) severing the parent-child relationship between an adoptee and the adoptee’s biological parents.
The simultaneous adoption solution to the cut-off provision in adoption statutes should apply to the parent-child relationship provisions in state probate laws. Applying the Sharon S. simultaneous adoption approach provides that a biological parent who does not relinquish parental rights with respect to a child will continue to be treated as a parent, and that the child will continue to be treated as the parent’s child, for purposes of intestacy. Similar to the explanation that the court provided in Sharon S., this solution does not require a broad and activist reading of the exception or a new, even more expansive intestate framework. Instead, it simply provides that the cut-off provision is discretionary, not mandatory, and thus, that the nonbiological parent’s second-parent adoption does not automatically extinguish the child’s right to inherent from the biological parent.
There is a concern, however, with analogizing to adoption law and applying the Sharon S. solution. Looking at legislative intent, the purpose behind adoption statutes - and family law in general - is to effectuate the best interest of the child. However, the purpose behind intestate and probate laws is to ensure testamentary freedom and effectuate the intent of the individual. Yet, allowing an adoptive parent to waive the “benefit” of the cut-off provision demonstrates, in a very direct way, demonstrates the desire of both the biological parent and the adoptive parent to include the child in the definition of “family” for the purposes of inheritance.
The structure of the American family is changing: a more fluid and flexible understanding of family is replacing notions of an archetypical heterosexual nuclear family. However, laws written with the traditional archetypical family in mind remain on the books. Many areas of law, including adoption and probate laws, must respond to the evolving concept of family, a concept increasingly inclusive of same-sex couples and their children. Arguing for the universal legalization of same-sex marriage as the solution is both unrealistic and, arguably, impractical, but laws should not discriminate against same-sex couples and, more importantly, their children. While one can argue that the cut-off provision does not explicitly discriminate against same-sex couples and their children, it has an unconstitutional disparate impact on children of same-sex individuals, especially because the children are unable to access the stepparent/spousal exception in most cases. The cut-off provision might therefore violate the Equal Protection Clause of the Constitution because it treats children of same-sex couples differently from children of heterosexual couples.
There is a long line of cases in which the Supreme Court has invalidated statutes that treat illegitimate children differently from those born in wedlock. In Levy v. Louisiana,[6. 391 U.S. 68 (1968).] for example, the Court utilized the rational basis test and determined that there was no rational reason to prevent illegitimate children from recovering under the state’s wrongful death statute. Although the Court’s decision in Labine v. Vincent[7. 401 U.S. 532 (1971).] concluded the opposite, the cases are distinguishable. Labine, decided three years after Levy, involved a Louisiana law concerning an illegitimate child who sought a portion of her father’s property after he died. The Court held that refusing to allow this illegitimate, unacknowledged child to inherit through intestate succession did not violate the Due Process or Equal Protection Clauses because Louisiana had a legitimate state interest in an orderly administration of succession and therefore there was a rational basis for the discriminatory treatment. The Court noted, however, that if the decedent had acknowledged his illegitimate daughter during his lifetime, then she would have been a natural child under the state’s intestacy scheme and would have inherited from his estate.[8. Id. at 533–37.] In Weber v. Aetna Casualty & Surety Co., the Court applied intermediate scrutiny to a worker’s compensation-claim methodology and held a denial of equal recovery rights to dependent unacknowledged illegitimate children violated the equal protection guarantee of the Fourteenth Amendment.[9. 406 U.S. 164, 165 (1972).] Finally, in Trimble v. Gordon, the Court invalidated an Illinois intestacy statute limiting inheritance by intestate succession to illegitimate children of the mother.[10. 430 U.S. 762, 776 (1977).] Once again, the Court noted the irrationality of any scheme that treated illegitimate and legitimate dependents differently. The Court upheld Trimble a decade later in Reed v. Campbell when it explicitly clarified that Trimble was still good law.[11. See 476 U.S. 852, 856 (1986); 430 U.S. at 770–71, 776.] While the level of scrutiny might not be the same in all the cases, there is a demonstrated history of Supreme Court precedent looking at the disparate impact of particular state statutes and requiring that states not to treat children differently merely on the basis of legitimacy.
Analogizing from these cases, the Court would most likely apply a rational basis test to the cut-off provision and require a legitimate state interest to hold the provision constitutional as applied to same-sex families. There does not appear to be a state interest that would pass constitutional muster. The “fresh start” policy, the only real reason states mention to justify the cut-off provision, does not provide a legitimate interest in the same-sex second-parent adoption context. In fact, it goes against the child’s best interest in divesting a meaningful personal relationship of all legal merit.
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