Adopting an Adult

In many states, such as New Jersey, family court systems encompass a variety of matters in addition to their typical matrimonial docket. Judges are required to resolve issues in other areas of law that come under the “family” description, such as juvenile delinquency, abuse and neglect cases, and adoption. Matrimonial attorneys can benefit from becoming acquainted with the variety of statutes and case law in these other areas of family law. This article focuses on one of the nuances of adoption law that is becoming increasingly relevant in the United States, the adoption of adults.

Background

Adoption has long been a way to establish a legally recognized relationship between a parent and a child. There are two important goals of adoption: 1) the creation of a valid parent-child relationship; and 2) the creation of inheritance rights. But what happens when adult adoption is used primarily for inheritance purposes and the adoption virtually eliminates any semblance of a parent-child relationship being legally formed?

State requirements to validate an adult adoption range from none to specifically created statutes for the adoption of an adult. These restrictions are in place in an effort to avoid fraudulent adoptions such as those used solely for testacy purposes. For example, in 2012, an adult adoption made national headlines when a man being sued for wrongful death attempted to adopt his girlfriend in order to include her in a trust established for his children, thus setting aside money that could not be accessed by the victim's family. As a result of attempts to circumvent laws, attorneys need to pay careful attention to the specific requirements in their state in order to effectuate an adult adoption.

Purpose of Adoption

As indicated above, the primary purpose of adoption is the creation of a legalized parent-child relationship. Courts have held that “[t]he basic purpose of child adoption is to provide and protect the welfare of children, to provide homes and families and security for homeless children and to provide children for couples who desire to have children to love and raise and maintain.” In re Adoption of Adult Anon., 435 N.Y.S.2d 527, 530 (N.Y. Fam. Ct. 1981). There are many different situations in which one or more parent desires to adopt an adult as their child. For example, parents who remarry after a divorce may want their new spouse to become the legal parent/guardian of their child from their prior marriage. Unless the biological parent agrees to relinquish his/her parental rights or a court terminates those rights, a stepparent cannot adopt the child. However, once that child turns 18 years old, that child is free to consent to being adopted by the step-parent.

In recent years, the main purpose of adult adoption has shifted from the creation of a valid parent-child relationship to adoption for inheritance purposes. Adopted children are treated the same as biological children under general inheritance laws. Under the Uniform Probate Code, the adoption of a child has the effect of severing inheritance rights between the child and its biological parents and creates the inheritance rights between the child and the adoptive parents. Unif. Probate Code ' 2-114 (2010). This rule is followed in many states, and invites persons to take advantage of the adoption system in order to circumvent intestacy laws and the intentions of trust creators. It is this second purpose of adoption that may make it difficult for parents to adopt adults in order to establish their parent-child relationship legally. Due to the increase in fraudulent adult adoptions, attorneys need to take a careful look at their state's adoption statutes prior to filing a complaint for their client.

State Requirements

Although there is no uniform standard for adult adoption throughout the states, most states allow some form of adult adoption and have statutes that explicitly address the situation. Other states may just have simple adoption statutes that courts will interpret broadly to include adult adoption. First, it is important to look at the intestacy statutes of the forum jurisdiction in which a stepparent is attempting to adopt a stepchild. Once the step-parent adopts the stepchild, some states sever all ties between the child and its biological parent and thus, the adoptee becomes a child of the adoptive stepparent and the biological parent to whom the stepparent is married. However, some states, particularly those that follow the Uniform Probate Code, allow the adoptee to remain a “child” of his or her genetic parent, thus allowing them to inherit through all three parents.

In the absence of a stepparent-stepchild relationship, a majority of the states have specific requirements in order to adopt an adult. One requirement for an adult adoption is the consent of the adoptee. This restriction allows the adult adoptee to make his/her own decision regarding the adoption. Some states require that this consent be written and others require the adoptee to give consent by being present during the adoption proceeding. Similarly, if the adult adoptee is married, some states require his/her spouse also to consent to the adoption. A couple of states make the consent requirement more difficult by requiring the parties to obtain consent of the adult adoptee's biological parents or legal guardian.

Other restrictions on adult adoptions include those that allow only a certain class of people to be qualified for adoption, or that allow adults to be adopted only under certain circumstances. The following are some examples of qualifying classes of adults eligible for adoption: 1) those who are permanently physically or mentally disabled; 2) persons who have a pre-existing kinship relationship with the adopting parents; 3) adults who consent to adoption by a married couple; 4) adults who have an established caregiver relationship when they were minors; and 5) stepchildren. In states with these requirements, an adult who does not meet the statutory qualifications cannot be adopted.

Other states place an age restriction on adults who can be adopted, such as those between the ages of 18 and 21 years old. Some statutes require that the adoptee be younger than the adoptive parent and many others mandate that the adopting parent be a minimum of 10 years older than the adoptive child. Furthermore, some states have residency requirements for adoption, such as both parties living in the state for a certain specified period of time before filing for an adult adoption.

Rights Granted

Although most states allow adult adoptions, not all grant the same rights to adult adopted children as biological children hold, such as becoming an automatic beneficiary of a trust due to their “child” status or being able to inherit under an intestacy statute. Some states specifically address the effect that an adult adoption will have on inheritance issues within their adoption laws. These statutes do not allow an adult adoption if the primary purpose of the adoption is to create inheritance rights, rather than a formalization of an existing parent-child relationship. Other states' adoption statutes differ in their treatment of children and adult adoptees when it comes to inheritance laws.

The Uniform Probate Code is an example of this differentiation in that it specifically excludes a person who was adopted over the age of 18 from class gifts that are made to an adopted parent's children by another person unless the parent functioned as a parent, or was the child's step-parent or foster parent before the child turned 18. The Uniform Probate Code does not similarly exclude those adopted as children from the class gifts.

Conclusion

After parties meet their respective states' statutory standards for adult adoption, the judicial adoption process is usually easy. Often, it is easier to adopt an adult than to adopt a child because as noted above, biological parental consent is not always required for adult adoption. Moreover, unlike the adoption of a child, notice to biological relatives about the impending adoption is not a requirement. Also, courts do not need to consider the best interests of the child standard when evaluating adult adoption because the adult child and adult parent are deemed to be competent enough to make their own evaluation of their best interests in adopting.

Because of previous attempts to create fraudulent adult adoptions and the lack of third-party consent in adoption cases, state restrictions are necessary in adult adoptions. An improper adoption can have serious consequences for the adoptees down the road when estate issues arise in their lives. Thus, attorneys need to pay close attention to the specific restrictions in their state in order to properly effectuate an adult adoption.

Laurence J. Cutler, a member of this newsletter's Board of Editors, is with Laufer, Dalena, Cadicina, Jensen & Boyd, LLC, Morristown, NJ. He is a diplomate in the American College of Family Trial Lawyers; an affiliate of the Matrimonial Lawyers Alliance; and a Master of the Barry I. Croland Family Law Inns of Court. Carly DiFrancisco is an associate in the firm.

In many states, such as New Jersey, family court systems encompass a variety of matters in addition to their typical matrimonial docket. Judges are required to resolve issues in other areas of law that come under the “family” description, such as juvenile delinquency, abuse and neglect cases, and adoption. Matrimonial attorneys can benefit from becoming acquainted with the variety of statutes and case law in these other areas of family law. This article focuses on one of the nuances of adoption law that is becoming increasingly relevant in the United States, the adoption of adults.

Background

Adoption has long been a way to establish a legally recognized relationship between a parent and a child. There are two important goals of adoption: 1) the creation of a valid parent-child relationship; and 2) the creation of inheritance rights. But what happens when adult adoption is used primarily for inheritance purposes and the adoption virtually eliminates any semblance of a parent-child relationship being legally formed?

State requirements to validate an adult adoption range from none to specifically created statutes for the adoption of an adult. These restrictions are in place in an effort to avoid fraudulent adoptions such as those used solely for testacy purposes. For example, in 2012, an adult adoption made national headlines when a man being sued for wrongful death attempted to adopt his girlfriend in order to include her in a trust established for his children, thus setting aside money that could not be accessed by the victim's family. As a result of attempts to circumvent laws, attorneys need to pay careful attention to the specific requirements in their state in order to effectuate an adult adoption.

Purpose of Adoption

As indicated above, the primary purpose of adoption is the creation of a legalized parent-child relationship. Courts have held that “[t]he basic purpose of child adoption is to provide and protect the welfare of children, to provide homes and families and security for homeless children and to provide children for couples who desire to have children to love and raise and maintain.” In re Adoption of Adult Anon., 435 N.Y.S.2d 527, 530 (N.Y. Fam. Ct. 1981). There are many different situations in which one or more parent desires to adopt an adult as their child. For example, parents who remarry after a divorce may want their new spouse to become the legal parent/guardian of their child from their prior marriage. Unless the biological parent agrees to relinquish his/her parental rights or a court terminates those rights, a stepparent cannot adopt the child. However, once that child turns 18 years old, that child is free to consent to being adopted by the step-parent.

In recent years, the main purpose of adult adoption has shifted from the creation of a valid parent-child relationship to adoption for inheritance purposes. Adopted children are treated the same as biological children under general inheritance laws. Under the Uniform Probate Code, the adoption of a child has the effect of severing inheritance rights between the child and its biological parents and creates the inheritance rights between the child and the adoptive parents. Unif. Probate Code ' 2-114 (2010). This rule is followed in many states, and invites persons to take advantage of the adoption system in order to circumvent intestacy laws and the intentions of trust creators. It is this second purpose of adoption that may make it difficult for parents to adopt adults in order to establish their parent-child relationship legally. Due to the increase in fraudulent adult adoptions, attorneys need to take a careful look at their state's adoption statutes prior to filing a complaint for their client.

State Requirements

Although there is no uniform standard for adult adoption throughout the states, most states allow some form of adult adoption and have statutes that explicitly address the situation. Other states may just have simple adoption statutes that courts will interpret broadly to include adult adoption. First, it is important to look at the intestacy statutes of the forum jurisdiction in which a stepparent is attempting to adopt a stepchild. Once the step-parent adopts the stepchild, some states sever all ties between the child and its biological parent and thus, the adoptee becomes a child of the adoptive stepparent and the biological parent to whom the stepparent is married. However, some states, particularly those that follow the Uniform Probate Code, allow the adoptee to remain a “child” of his or her genetic parent, thus allowing them to inherit through all three parents.

In the absence of a stepparent-stepchild relationship, a majority of the states have specific requirements in order to adopt an adult. One requirement for an adult adoption is the consent of the adoptee. This restriction allows the adult adoptee to make his/her own decision regarding the adoption. Some states require that this consent be written and others require the adoptee to give consent by being present during the adoption proceeding. Similarly, if the adult adoptee is married, some states require his/her spouse also to consent to the adoption. A couple of states make the consent requirement more difficult by requiring the parties to obtain consent of the adult adoptee's biological parents or legal guardian.

Other restrictions on adult adoptions include those that allow only a certain class of people to be qualified for adoption, or that allow adults to be adopted only under certain circumstances. The following are some examples of qualifying classes of adults eligible for adoption: 1) those who are permanently physically or mentally disabled; 2) persons who have a pre-existing kinship relationship with the adopting parents; 3) adults who consent to adoption by a married couple; 4) adults who have an established caregiver relationship when they were minors; and 5) stepchildren. In states with these requirements, an adult who does not meet the statutory qualifications cannot be adopted.

Other states place an age restriction on adults who can be adopted, such as those between the ages of 18 and 21 years old. Some statutes require that the adoptee be younger than the adoptive parent and many others mandate that the adopting parent be a minimum of 10 years older than the adoptive child. Furthermore, some states have residency requirements for adoption, such as both parties living in the state for a certain specified period of time before filing for an adult adoption.

Rights Granted

Although most states allow adult adoptions, not all grant the same rights to adult adopted children as biological children hold, such as becoming an automatic beneficiary of a trust due to their “child” status or being able to inherit under an intestacy statute. Some states specifically address the effect that an adult adoption will have on inheritance issues within their adoption laws. These statutes do not allow an adult adoption if the primary purpose of the adoption is to create inheritance rights, rather than a formalization of an existing parent-child relationship. Other states' adoption statutes differ in their treatment of children and adult adoptees when it comes to inheritance laws.

The Uniform Probate Code is an example of this differentiation in that it specifically excludes a person who was adopted over the age of 18 from class gifts that are made to an adopted parent's children by another person unless the parent functioned as a parent, or was the child's step-parent or foster parent before the child turned 18. The Uniform Probate Code does not similarly exclude those adopted as children from the class gifts.

Conclusion

After parties meet their respective states' statutory standards for adult adoption, the judicial adoption process is usually easy. Often, it is easier to adopt an adult than to adopt a child because as noted above, biological parental consent is not always required for adult adoption. Moreover, unlike the adoption of a child, notice to biological relatives about the impending adoption is not a requirement. Also, courts do not need to consider the best interests of the child standard when evaluating adult adoption because the adult child and adult parent are deemed to be competent enough to make their own evaluation of their best interests in adopting.

Because of previous attempts to create fraudulent adult adoptions and the lack of third-party consent in adoption cases, state restrictions are necessary in adult adoptions. An improper adoption can have serious consequences for the adoptees down the road when estate issues arise in their lives. Thus, attorneys need to pay close attention to the specific restrictions in their state in order to properly effectuate an adult adoption.

Laurence J. Cutler, a member of this newsletter's Board of Editors, is with Laufer, Dalena, Cadicina, Jensen & Boyd, LLC, Morristown, NJ. He is a diplomate in the American College of Family Trial Lawyers; an affiliate of the Matrimonial Lawyers Alliance; and a Master of the Barry I. Croland Family Law Inns of Court. Carly DiFrancisco is an associate in the firm.