Saturday, May 27, 2006
Peter T. Wendel (Professor of Law, Pepperdine University School of Law), has recently published an article entitled Inheritance Rights and the Step-Partner Adoption Paradigm: Shades of the Discrimination Against Illegitimate Children, 34 Hofstra L. Rev. 351 (2005).
Here is the conclusion of his article:
Just as inheritance laws that excluded illegitimate children "sent a signal that childbearing ought to occur within the marital context," the prevailing stepparent adoption inheritance laws that exclude children adopted by a step-partner send a signal that adoption ought to occur within the marital text. The stepparent adoption rule discriminates against children adopted by step-partners with respect to inheritance laws. From a public policy perspective, this distinction is illogical and unjust. One would expect that, as the asymmetry in inheritance rights is made public, there should be support for granting a child adopted by a step-partner the right to inherit from both natural parents. Liberals should support such an approach because it broadens what constitutes a legally recognized parent-child relationship. Conservatives should support such an approach because it is in the best interests of the child. From a public policy perspective, the failure to extend the stepparent adoption rule to the step-partner adoption scenario is as illogical as the rule itself.
In addition, while there is no constitutional requirement that states permit step-partner adoptions or that states adopt the stepparent adoption rule, if a state has the stepparent adoption rule and it recognizes step-partner adoptions, the Equal Protection Clause of the Fourteenth Amendment requires the state to extend the stepparent adoption rule to children adopted by step-partners. Similarly situated children should be treated the same. At a minimum, the Uniform Probate Code's stepparent adoption rule should be amended to grant a child adopted by a step-partner the same inheritance rights as a child adopted by a stepparent so that family law, as embodied in the Uniform Adoption Act, and wills and trusts law, as embodied in the Uniform Probate Code, speak with one voice on this important emerging social and legal issue.