Blogs from March, 2012


Virtual Adoption and its Effects on Estates and the Probate Process

Roger dies without a will.  He is survived by his son, Junior, and his purported daughter, Mary.  During a previous marriage, Roger and his first wife had attempted to adopt Mary, who was a young child at the time.  They file the necessary paperwork with the family court, along with the signed consent of the natural mother.  Mary lives with Roger for some time, with Roger treating her and introducing her to others as his daughter.  Unfortunately, before the adoption is finalized, Roger and his first wife divorced, and the adoption is never finalized.  By the time the divorce is final, Mary is no longer a minor and has moved out of Roger’s home to live with her boyfriend.  Fast-forward to the present, Roger’s estate is opened and Junior is appointed as the personal representative.  He now attempts to exclude Mary as a beneficiary claiming that she is neither the biological nor the adopted child of Roger.  Does Mary have any recourse?  Is Mary not an heir of Roger’s estate merely because of this technicality?

The Law Regarding Virtual Adoptions

In the legal realm and in Florida courts, “virtual adoption” is a coined phrase wherein a person agrees in a contract to legally adopt a child of another, but, for one reason or another, the person fails to do so (a legal synonym for this would be “equitable adoption”).  This is not an overly common issue before the courts; in fact, if the issue was presented before a local judge, it may be met with a blank stare.  Nevertheless, this issue does find its way in the courts, and more specifically, in the context of probate and estate issues.

In 1985, the Fifth District Court of Appeals of Florida discussed the elements required to prove “virtual adoption” and they are as follows:

  1. An agreement between the natural and adoptive parents (to 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 the home and treating the child as their child; and
  5. Intestacy of the foster parents.

All of these elements must be proven through clear and convincing evidence.

In re the Heirs of Hodge, 470 So.2d 740 (Fla. 5th DCA 1991); In re Estate of Musil, 965 So.2d 1157 (Fla. 2d DCA 2007).

Virtual adoption is not a mechanism to create a parental relationship between people; it is an equitable remedy to enforce a contract.  An adopted child has the same rights as a biological child under Florida law.  As a result, a child who proves virtual adoption has the same rights as a biological child to inherit from the estate of a parent.

Additionally, the Florida Probate Code directs who should have a preference of appointment as the personal representative when the decedent dies without a will.  Fla. Stat. §733.103(b) states that such preference shall be given in the following order: (1) the surviving spouse; (2) the person selected by a majority in interest of the heirs; and (3) the heir nearest in degree (if more than one applies, the court may select the one best qualified).

Virtual Adoption of Mary

Going back to our example with Junior and Mary, Mary first has to prove all of the elements for virtual adoption.  (a) Was there an agreement between Mary’s natural parents and Roger to adopt Mary?  According to our facts, Roger and his first wife filed all of the necessary paperwork under the family statutes to adopt Mary, including the signed consent of Mary’s parents.  This signed consent acts as the required agreement; therefore, the first element is satisfied.

(b) Was there a performance by Mary’s natural parents to give up custody?  Given our facts, Mary had been living with Roger, had been a financial dependent of Roger, and in all other ways been the parent of Mary. Through this conduct of Roger and the consent of Mary’s natural mother, the performance by Mary’s natural parent could be proven.  If only the paperwork had been filed, but Mary had still been living with her natural parent, then this element may be difficult to prove.

(c)  Was there a performance by Mary living in the home of Roger?  Since Mary lived with Roger and the first wife, then no longer lived with Roger after he divorced, this element would nevertheless be satisfied since Mary had shown performance. In Laney v. Roberts, 409 So.2d 201 (Fla. 3d DCA 1982), the Court noted that “[t]he performance required by the child is satisfied by living in the home of the adoptive parents.”  In this case, the adoptive parents and the child became estranged once the child reached the age of majority. The court noted that even if the relationship “was distant — even nonexistent — such a fact does not serve to defeat claim” by the child seeking to retain her interest as an heir.  Therefore, even if Roger and his first wife divorced and Mary moved out because she was no longer a minor, this would in no way impact the satisfaction of this element.

(d) Did Roger take Mary into his home and treat Mary as his own child?  Mary would have to show that not only did she live with Roger, but that he treated her as her dependent and held her out as his daughter.  Our facts indicate that this element may be satisfied.  Mary may have to prove through written documentation, specifically Roger’s income tax statements and other bank documents that Mary was a financial dependent of Roger.  In addition, if there were any family friends who knew Roger and Mary during the time that they lived together, their testimony would be relevant.  This family friend may know if Roger introduced and in all ways considered Mary as his daughter.

(e)  Did Roger die intestate?  Intestate is a probate term meaning that the decedent died without a valid will.  The decedent’s estate would then pass to the appropriate interested parties as designated in the Florida Probate Code.  In Mary’s case, unless someone can show the Roger did have a valid will when he died, this element will be satisfied.

In and apart from a mere beneficial interest in Roger’s Estate, Mary may also have a claim to remove Junior as the personal representative and petition the Court to have her appointed as the personal representative.  As indicated above, Fla. Stat. §733.103(b) (2), (3), the Court will grant preference of appointment of a personal representative of an intestate estate to a person selected by a majority of the interested parties, and, if there is no majority, to the heir closest in degree.  In Mary’s case, if she can successfully convince the Court to enter an order that validates the virtual adoption by Roger, then she can subsequently claim that Junior never received her consent, as an interested party, to become the personal representative.  In addition, she would also be in the same class of heirs as Junior in regards to the closest degree.  Therefore, she may be successful in not only removing Junior as the personal representative since he did not have the consent of a majority of the interested parties, but she may also petition the court that she is an heir closest in degree and that, given the circumstances, she would be best qualified to serve and to administer the Estate for the best interests of the beneficiaries.


As stated previously, virtual adoptions have not been an overly-common occurrence in the Florida courts; however, they have become more prominent in recent years.  This may be due to the differences in society over the last several decades.  People who are now in their 80’s and 90’s most likely had children in the 1940s and 1950s, during a time that the idea of a litigious family squabble was much less prominent than it is today.  As a result, people then may not have taken the time to make sure that every technical aspect of adoption was finalized.  Florida probate courts have increasingly been presented with the virtual adoption argument, and this may only be the beginning of a much more prominent issue that the Courts will have to consider.  Therefore, it is important for any potential beneficial heir of a loved-one’s estate to be fully aware of the circumstances and legal aspects of an estate administration, and the best way to be informed of such issues is to consult a probate attorney.


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