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Virtual Adoption versus Will Contest

Written by on Sep 4, 2009| Posted in: Estate Litigation

… and the winner is Will Contest.

It is not uncommon for a couple to welcome a child into their home and treat it as a family member without ever legally adopting the child. When the situation is brought to the court’s attention, usually through some probate proceedings, courts sometimes employ the doctrine of “virtual adoption.” This doctrine allows the child or another party the same rights the party would have had if a legal adoption had taken place.

Generally speaking, the theory of recovery in a virtual adoption case is founded upon either equitable principles or upon the theory of estoppel. The doctrine has been recognized and applied by Florida courts, which have held that virtual or equitable adoption may be established by showing the following elements: (1) an agreement between the natural and adoptive parents to adopt the child; (2) performance by the natural parents in giving up custody of the child; (3) performance by the child by living in the adoptive parents’ home; (4) performance by the adoptive parents by taking the child into the home and treating the child as their child; and (5) the intestacy of the foster or adoptive parents.

In McMullen v. Bennis 34 Fla.L.Weekly D1808a (Fla. 3rd DCA September 2, 2009) the Florida appellate court explained that there are some situations where the doctrine’s application is excluded. One of these is where there is a valid will. McMullen involved a will contest in Miami Dade county. Before determining the validity of the last will and testament, the trial court heard evidence on the petition for determination of beneficiaries and concluded that Bennis was a “virtually adopted daughter” of the decedent, potentially assuring her a distribution from the estate either as a beneficiary under the will or as the sole heir of the decedent under the laws of intestacy.

In McMullen, it was undisputed that there is a last will and testament of record purportedly executed by the decedent, however, the parties disputed the validity of that will. The Third District Court of Appeals felt that allowing a determination of beneficiaries and deciding the virtual adoption issue would be the equivalent of issuing an advisory opinion which the court was not inclined to provide. Thus the court sent the case back to Miami with instructions to put the cart behind the horse: “In this case, the validity of the decedent’s will is unresolved. Whether Bennis is a virtually adopted daughter becomes material to the probate proceeding only if the decedent’s will is invalid. Consideration of the validity of the decedent’s will necessarily must be the court’s first order of business. If the court determines the will is invalid, Bennis then may proceed as she deems appropriate.”

The only situation that I believe would require the virtual adoption case to be determined before the will contest case would be in the context of a pretermitted child where a person omits to provide in his or her last will and testament for a child or adopted child because the child was born or adopted (which presumably would include virtual adoption) after making the last will and testament.

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