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What is “Equitable Adoption” and How Does it Affect Inheritance Rights?

It’s based upon the equitable belief that the law should recognize as complete under specific circumstances – what should have been done – or was intended.

Contractual Rationale/Requirements Regarding Equitable Adoption

  1. An actual agreement (that did not have to be written) must have existed between the natural parents and those who planned to adopt the child;
  2. Full custody of the child was given up by the natural parents to the person(s) seeking to adopt;
  3. The child to be adopted actually moved in with the intended adoptive parents;
  4. The “new” parents actually began raising the child as their own; and
  5. The adoptive parents later died intestate (without a will).

Other Factors Involved with Equitable Adoption

  • Under this type of adoption, the child involved can inherit from the parents who had intended to adopt him/her – but not through them;
  • The (intended) adoptive parent is not allowed to inherit from the child – nor through him/her; and
  • Legal scholars have said that “equitable adoption” does not actually establish a parent – child relationship. Instead, this legal fiction (or equitable principle) simply creates a possible cause of action for the equitably adopted child to sue for his or her share of an intestate person's property, based upon breach of contract grounds.

Obviously, whenever you make any type of arrangements to adopt a child, you must move forward without delay – while meeting all legal requirements -- to finalize the adoption. Courts always expect such arrangements to be made in keeping with the child's best interests. If close family members are contesting your actions, you need to give serious thought as to whether or not living with them may be better for the child in the long run. However, the law will usually honor the biological parents’ wishes, unless a child is clearly going to be emotionally compromised by the arrangement.

 

 

To obtain help with satisfying all of your Georgia estate planning needs, please contact the Law Offices of Shane Smith today.  You can schedule your free initial consultation with a knowledgeable Peachtree City estate planning attorney by calling: (770) 487-8999.

 


Shane Smith
Advocate for the Seriously Injured in Georgia