Article on the Equitable Doctrine’s Inequities
****
Generally, intestacy statutes are explicit in providing children with the right to inherit from an intestate parent. What is not clear, however, is the meaning of “child” according to the statutory language and the bounds of the parent-child relationship necessary to establish the right to intestate succession. For example, while “child” is generally understood to refer to the “natural relationship based upon biological reproduction,” a child could also be someone who was legally adopted by the decedent or even someone who was not legally adopted by the decedent, but nonetheless maintained a parent-child relationship with the decedent. Accordingly, differentiating between the proper meaning of “child” within intestacy statutes will always be the determining factor in deciding whether a child is entitled to a share of an intestate decedent’s estate.
A biological child will always be entitled to inherit from an intestate decedent, as will a child who was formally legally adopted by the decedent. As to the third scenario, however, in which the child was cared for, supported by, and educated by the decedent, and maintained a parent-child relationship with the decedent, it is unclear whether the child will be entitled to inherit from the intestate decedent when no formal adoption proceedings have been completed. Such is the case in a virtual adoption.
A virtual adoption occurs when a child was supposed to be legally adopted but his or her adoptive parents failed to satisfy the legal requirements of a formal adoption. It is an equitable doctrine which generally arises when the would-be adoptive parent dies intestate, and it operates to *552 allow the virtually adopted child to inherit from the intestate decedent. Thus, while the Uniform Probate Code is the ultimate authority on inheritance in the case of an intestacy proceeding, virtual adoption is the well-recognized exception to the statutory scheme. Be that as it may, the enforcement of the doctrine of virtual adoption has yet to be applied consistently throughout the courts in this country.
Employing principles of equity and public policy, probate courts have come to recognize the necessity, legitimacy, and application of virtual adoption in intestacy proceedings. However, with the steady increase in the divorce rate and the rapid changes in “traditional” family life, the doctrine is quickly spreading to other areas of law and is no longer limited to probate matters. Nonetheless, there remain inconsistencies in its application and the appropriate circumstances in which courts can invoke the doctrine to provide relief for virtually adopted children. As a result, virtual adoption should no longer be looked at under limited, narrow circumstances, but should instead be broadened to prevent unfair results for virtually adopted children, just as the doctrine was intended to do.
****
Note: I would like to take this opportunity to apologize to Ms. Weisser for misstating her gender when I featured her article in my Keeping Current—Probate column which appeared in the January/February 2012 issue of Probate and Property magazine.