Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Saturday, September 29, 2007

Equitable Adoption Analyzed

HigdonMichael J. Higdon (Lawyering Process Professor, William S. Boyd School of Law, University of Nevada) has recently posted on SSRN his article entitled When Informal Adoption Meets Intestate Succession: The Cultural Myopia of the Equitable Adoption Doctrine.  The article will also appear in a forthcoming issue of the Wake Forest Law Review.

Here is the abstract of his article:

In certain circumstances, the equitable adoption doctrine allows a person to inherit as the child of a testator even when the testator was neither that person's biological or adoptive parent. Although this doctrine, at first blush, might appear to be a move toward a more inclusive system of intestate succession, as many scholars have noted, the restrictive tests that the various courts have designed to determine who qualifies as an equitably adopted child have only served to greatly undermine the utility of the doctrine and, in numerous cases, have led to the denial of rather compelling claims.

While agreeing with those criticisms, this article levels a new, more troubling, criticism against the equitable adoption doctrine. Specifically, the equitable adoption doctrine is both culturally-biased and discriminatory. Indeed, as it currently exists, the doctrine uses formal adoption, as that practice exists within the Eurocentric, nuclear family model, to define what qualifies as a parent-child relationship worthy of legal protection. In so doing, the doctrine effectively ignores the practice of informal adoption, which is much more prevalent in the extended family model found in African American and Hispanic communities. This article, thus, examines both the extended family model and the corresponding role that informal adoption plays within those two communities. Set against that backdrop, it becomes much more evident how the current law of equitable adoption not only is overly restrictive, but has the potential to be particularly punishing to our country's minority ethnic populations. With those concerns in mind, this article then offers two different proposals that would make the law of intestate succession more cognizant and inclusive of informally adopted children.


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I have been ""Daddy"" to a boy for the last five years. He is ten now. His mother and I have been living together as a family unit for that time. I am not the biological father. He has never met his biological father. The man on his birth certificate was married to his mother when he was born. They separated and divorced when the child was 5. Recently she moved out and I continued to my role as father to him. Now she has met a new guy and tells me that the new man will now take over as the father figure in her sons life and that I am allowed no contact with him. I consulted a local attorney who said I had no case. She is going to move to Seattle WA. away from all he ever known in two weeks to be with this guy who my son has only met twice. I live in OH.

Posted by: Doug | Jan 7, 2010 1:57:08 PM

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