Wills, Trusts & Estates Prof Blog

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

Tuesday, July 16, 2019

Comment on What's Equitable Adoption Got to Do With It?: An Examination of Texas' 2017 Amendment and its Impact on Inheritance Rights

TexasLeah Towe recently published a Comment entitled, What's Equitable Adoption Got to Do With It?: An Examination of Texas' 2017 Amendment and its Impact on Inheritance Rights, 71 Baylor L. Rev. 239-266 (2019). Provided below is an [] of the Comment.

The practice of adoption dates back to ancient times, as biological parents have transferred their children to other adults who wanted the children for "love, labor, and property." Many historians have traced adoption in the United States to Massachusetts' passage of the first "modern" adoption law in the 1850s. Specifically, the Massachusetts Adoption of Children Act promoted the notion that adoption should benefit the welfare of children, rather than adult interests. Since Massachusetts' initial law, all other states continue to implement and reform legislation governing adoptions. As times change and family dynamics evolve, many states have evolved as well, allowing for adoption outside of the statutory, legal process under certain facts and circumstances. The right facts and circumstances often result in a posthumous adoption out of equity, also known as equitable adoption.

Texas has recognized the concept of equitable adoption since the 1930s. While the plain language of the relevant statute has long suggested that equitably adopted children should be treated the same as legally adopted children and natural children for inheritance purposes, the Texas Supreme Court has refused to interpret the statute this way. In response, Texas lawmakers in the 85th Legislative Session of 2017 proposed and passed House Bill 2271 (H.B. 2271), which amended the definition of "child" in Section 22.004 of the Estates Code to include equitable adoption. H.B. 2271 also added a subsection to Section 201.054 to define "adopted child." With these changes, Texas lawmakers have expressed their intent to finally provide the same inheritance rights to both legally adopted children and equitably adopted children.

This Comment will briefly provide some background on the history of adoption in Texas; the history and evolution of equitable adoption in Texas; insight into the 85th Texas Legislature's 2017 amendment, as it could impact intestate succession - and by relation, testate succession and other inheritance rights - in the future; predictions regarding Texas courts' likely response to this amendment; and finally, a peek into the shortcomings of this amendment.


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