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It's The Law: Virtual Adoption Can Create Heirs

Q: A friend of mine was raised by his uncle from the age of 2. The uncle died without a will. The uncle's other children now claim that my friend has no right to share in the uncle's estate. Is that true?

A: Adoption is purely a creature of statute. It did not exist under English common law. If adoption is effected pursuant to Florida's statutes, it creates a new legal relationship of parent and child and terminates the legal relationship between the child and his or her biological parents.

If a child is not adopted pursuant to statute, the child is generally barred from making any claim arising from his living arrangement. This has been made clear in cases involving claims for workmen's compensation benefits, where only biological children and those legally adopted are entitled to benefits for their parent's injury. Even if a child has been raised and held out as the child of someone from birth, if the actual legal relationship does not exist, no legal rights spring from that relationship.

The one area in which Florida courts have veered from the strict definition of parent and child has been probate. Florida recognizes the concept of "virtual adoption" in probate, although no Florida court has specifically defined virtual adoption. The courts have explained that virtual adoption is an equitable concept created to protect someone who was supposed to be adopted but the legal requirements for formal adoption have not been met.

A few weeks ago, Florida's Third District Court of Appeal reconfirmed the elements that must be met to establish a virtual adoption as the following:

1. An agreement between the natural and adoptive parents that the adoptive parents would adopt the child;

2. Performance by the natural parents of the child in giving up custody;

3. Performance by the child by living in the home of the adoptive parents;

4. Partial performance by the foster parents in taking the child into their home and treating the child as their child; and

5. The foster parents die without a last will and testament, so that their assets pass by intestate succession.

All 5 elements must be present and must be proven by clear and convincing evidence. Clear and convincing evidence is much more difficult than proof required in the typical civil suit, which is merely greater weight of the evidence.

If virtual adoption is established, the child shares in the estate of the decedent as if the child was a natural born child of the decedent. Status as a virtually adopted child can provide other benefits too.

As an heir, the virtually adopted child may be entitled to preference as personal representative or executor of the estate. At least one Florida court has held that a virtually adopted child is entitled to inherit homestead and the Constitutional protection from creditor claim that comes with it. That means a virtually adopted child inheriting homestead would be in a better position than a non-adopted "child" receiving the same homestead by will.

Florida's Constitution protects homestead from the claims of the decedent's creditors, and that protection is inherited by an heir (generally blood or an adopted relative) even in the hands of an heir. A virtually adopted child is an heir, but virtual adoption can only exist where the decedent did not have a will. Homestead property given to a non-adopted "child" under a decedent's will is not given to an heir and the property is exposed to the claims of the decedent's creditors.

The concept of virtual adoption also opens new interests for litigation. In the recent case ofMcMullen v. Bennis, a child claimed to be the virtually adopted daughter of the decedent. She challenged the decedent's will as invalid, because she could not be a virtually adopted child if the decedent had a valid will. The will apparently left her nothing. If she was virtually adopted and the decedent had no will, she would get an intestate share of his estate. That case is ongoing and no final decision has been reached.

Failure to promptly pursue a claim can result in the claim being barred by various limitations. Your friend should consult with an experienced attorney immediately to review the facts and circumstances of his case. Your friend may find that he has a good claim to being the virtually adopted child of his uncle.

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