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Thursday, September 13, 2012

Article Proposing Uniformity in Inheritance Rights of Adult Adoptees

Adoption_certificateJackie Messler (J.D. 2012, Marquette University Law School) recently published her article entitled The Inconsistent Inheritance Rights of Adult Adoptees and a Proposal For Uniformity, 95 Marq. L. Rev. 1043 (2012).  The introduction to the article is below: 

In the areas of trust and will interpretation, states vary on how to interpret class gifts that include language such as “issue,” “heirs,” and “children.” This variance is one motivation for people to undertake drastic measures such as adult adoption. For example, Father and Mother set up a trust to benefit their children, X, Y, & Z. Z dislikes his siblings but has no spouse or children. Z wants to make sure his share of his parents' trust does not go to his siblings. Z adopts a good friend of his, T, who is an adult. Jurisdictions vary on how to interpret T's interest and vary on T's ability to benefit from Z's parents' trust. Some statutes only restrict an adult adoptee's ability to inherit from a third party when the testamentary documents specifically prohibit such inheritance. Other statutes set a strict age limit, disallowing an adult adoptee to inherit from a third party when they are adopted after age eighteen. Although the example illustrates one motivation for adult adoption, most times an adoption is a result of a close and loving relationship. The goal of the adoption is to make the person a genuine member of the family. As it stands, states do not uniformly treat adult adoptees as genuine members of the family. A default rule that uniformly recognizes the adoptee's inheritance rights generally aligns with the adoptor's motivation for the adoption.

There are several different theories on how to remedy this inconsistency. One solution would change the current definition and meaning of “family” in the law. The so-called “functional” approach attempts to define the familial relationship by actually looking at the nature of the relationship between parties. Another solution would allow people to designate a beneficiary at law, eliminating the need to turn to drastic measures, such as adult adoption. A third solution would be to pass a uniform law giving an adult adoptee the status of a natural child. Uniformity would help to fulfill the goal of undertaking the adoption in the first place--to take in the person as a genuine member of the family.
In this Comment, Part II will discuss the history of adoption and give a background on how adult adoption differs from “regular” adoption. Part III will discuss the different motivations parties would have for adult adoption, ranging from inclusion in a class gift to denying standing to collateral relatives who seek to challenge a testamentary disposition. Part IV compares the current inheritance rights of adult adoptees in Wisconsin, Illinois, Indiana, and Minnesota. Part V outlines solutions and proposals for solving the inconsistency of adult adoptees' inheritance rights across jurisdictions. Finally, Part VI concludes with a summary of the main issues and the proposals to remedy those issues.

http://lawprofessors.typepad.com/trusts_estates_prof/2012/09/article-proposing-uniformity-in-inheritance-rights-of-adult-adoptees.html

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Comments

Anyone wanting to know more about the adult adoption issue is welcome to download my law review article on the subject, cited in the above article.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1317437

I also have a Slate article on the subject.

http://www.slate.com/articles/news_and_politics/jurisprudence/2012/02/should_a_florida_millionaire_be_prosecuted_for_incest_because_he_adopted_his_girlfriend_.html

Posted by: Terry L. Turnipseed | Sep 14, 2012 9:37:06 AM

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