Article on Florida DOMA’s Statute And Its Effects On Same-Sex Couples
Recent developments inadoption rights for homosexuals in Florida have dramatically changed the legallandscape for same-sex couples hoping to secure property rights for each otherafter death. Prior to 2010, no homosexual person could adopt any childor adult in Florida, thus rendering adult adoption generally inapplicable tosame-sex couples. With the Third District Court of Appeal’s (“ThirdDistrict”) authorization of a homosexual adoption in Florida Department ofChildren & Families v. Adoption of X.X.G. & N.R.G., came the possibility of adult adoption as a way to ensurethe surviving partner would receive property and assets in accordance with thedecedent’s intent.
While adult adoption provides same-sex couples with a safer way to plantheir estates pursuant to their wishes, it comes with a rather steep price: Theadoptee’s right to inherit his or her biological family’s intestate estate issevered. When an individual is legally adopted, he or sherelinquishes his or her right to inherit from relatives through intestacy,therefore potentially losing out on considerable assets in the future. Thus, Florida forces same-sex couples to choose, quiteliterally, between their partner and their family.
This article will first discuss the history of same-sex couples inregards to the legal obstacles they face in Florida. Specifically, this section will focus on the same-sexmarriage controversy and the evolution of homosexual adoption rights inFlorida. Second, this article will explore adult adoptiongenerally. This section will address many different aspects of adultadoption, for instance, its statutory basis in Florida, other reasons behindit, and its key differences as compared to child adoption. The next section will discuss adult adoption as a legaltool for same-sex partners planning an estate in Florida. This section will weigh the benefits of adult adoptionwith regard to intestate succession, will contests, and rights to homesteadagainst the irrevocable nature of adoption, and the resulting severance of theadoptee’s inheritance rights to his or her family’s intestate estate. The next section will consider a possible solution to theproblems associated with same-sex couples and adult adoption in Florida:Trusts. This section will discuss Florida trusts generally, andwhich types would likely be the most beneficial to same-sex couples interestedin long-term, financially stable futures together. Finally, this article will illustrate why trusts couldprovide a far more sensible method by which same-sex couples in Florida canconfidently control their assets during life and after death.