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A New Kind of Kin – Equitable Adoption Comes of Age

Hidden among the many provisions of the Texas Estates Code is a little statutory gem called “Definitions.” There one can find helpful information about such common terms as “next of kin,” “person, ” “heir,” “distributee,” and “child.”

It is the definition of “child” that the 85th Legislature recently decided to tinker with, and the resulting change should interest anyone who has nonchalantly used the term in estate planning documents.

In Texas the term “child” has historically included both biological and adopted children. The adoption process was specifically limited only to procedures recognized by a statute or by acts of estoppel. The new law adds yet another method: equitable adoption.

Since the law presumes that, unless specifically named in a will, a person has no adopted children, an adoption of any type must be proved in the probate of the estate. Of the three adoption methods, statutory adoption is the most unambiguous, and can be easily proven by a court order confirming the adoption. For that reason alone, it would be really nice if parents and the child involved in an adoption actually took the time to formalize the relationship through a court proceeding.

For those not choosing the formal adoption route, estoppel adoption is the next easiest to prove in a probate proceeding. A child has been adopted by estoppel when a natural parent delivers a child into the custody of others under an agreement between the parent and the custodians that the child will be adopted, and thereafter the custodians and child live in a relationship consistent with that of a parent and child. The agreement between the adults that the child will be adopted is key to proving adoption by estoppel. There must be a contract (written or oral) to adopt, reliance on the contract, and representations that the child has been adopted. To prove the adoption, the child has to show love and affection to the parent and render “services” such as a child would render to a parent.

Equitable adoption is the most difficult to prove. An equitable adoption does not require a contract. Instead, an equitable adoption is where the child acts in reliance on its belief in its status as a son or daughter. The important relationship is between the equitably adoptive child and the adoptive parent.

The legal niceties between equitable and estoppel adoption have not always been observed by appellate courts, which is a wordy way of saying that a lot of courts have gotten it wrong. The statutory change means that in the future courts won’t have to parse through the difference in such excruciating detail.

It is a big thing to mess around with definitions. When the legislature changed the definition of “child,” it also changed the meaning of every Estates Code statute that references the term “child.” It is going to take a while for all of the changes to filter through.

The new law is effective September 1, 2017.

Hammerle Finley Law Firm. Give us a call. We can help.

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The information contained in this article is general information only and does not constitute legal advice.

egal advice.

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