Tuesday, January 31, 2012
Russell E. Utter (2012 J.D. Candidate, UMKC School of Law) recently published his article entitled, The Benefits and Pitfalls of Adult Adoption in Estate Planning and Its Likely Future in Missouri, 80 UMKC L. Rev. 255 (2011). The introduction to the article is below:
Most laypersons and perhaps a majority of lawyers who never took advantage of the opportunity to take an Estates class are likely unfamiliar with the term “adult adoption.” The idea may appear ludicrous and outlandish to many, but to a knowledgeable estate planner the concept may have some practical values. Although in most instances an adoption will be intended more for family purposes such as formalizing an existing relationship between a step-parent and an adult step-child, many times adoptions are used to secure inheritance rights for the adoptee. Adult adoption certainly brings a potentially valuable tool to an estate planner's toolbox, albeit one that should be used with care.
Part II of this note examines the beginning stages of adult adoption and traces some of the major transformations of this device. Though centered on Missouri Law, this note examines leading cases from other jurisdictions. Part III addresses some of the benefits that can arise from adult adoption if used correctly and depending on the factual circumstances, focusing on the common types of adult adoption, as well as the common purposes for their use. Part IV discusses some of the pitfalls of adult adoption, including the finality of adoption, public policy limitations imposed by courts, and possible malpractice suits against ill-prepared attorneys. Part V addresses Missouri's current law on this issue and explores how Missouri courts might react to different adult adoption scenarios that have yet to come before them.
This paper concludes that adult adoptions work best and fulfill their intended goals when used for the traditional purposes that general adoption serves-to formalize a family relationship. It finds that adoptions with a primary purpose of formalizing an already existing parent-child relationship also have the most success when it comes to securing the inheritance rights intended. On the other hand, adoptions based solely on gaining inheritance rights can create significant obstacles in fulfilling their purposes. Although Missouri has no published opinion pertaining to the adoption of a lover, either homosexual or heterosexual, it appears unlikely that the state will allow one. Missouri law is clearly against sham adoptions set up merely to defeat others' expected inheritances. Finally, this paper suggests a way to circumvent some common problems that have arisen with adult adoptions, offering a safer, less risky alternative that may ensure inheritance rights.