Equitable vs Statutory Adoption: Probate Code 6454 & Requirements of Equitable Adoption in California
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For the purposes of inheriting, California probate law treats adopted children the same as biological children. If a person dies without a will, both adopted and natural children are viewed under California intestacy law as possessing the same status as heirs. So, as long as the child is adopted during the parent’s lifetime in accordance with the procedures outlined in the Family Code, that adopted child can inherit from the parent in the same manner and percentage as natural born children.
If a child is not legally adopted during the parent’s lifetime, a child can still inherit from that parent through either (1) statutory adoption or (2) equitable adoption.
Statutory adoption under Probate Code section 6454is available when the relationship between parent and child began before the child turned 18 years of age, the relationship continued throughout both of their lifetimes, and the parent would have adopted the child but was prevented from doing so due to a “legal barrier.” The most common legal barrier is when a child’s biological parent or parents do not consent to the adoption, which is required for a third party to adopt a minor.
Equitable adoption occurs when the concepts of equity and fairness allow for the enforcement of a promise or oral agreement to adopt. If a parent dies without a will, equitable adoption empowers a child to receive property from the parent if the child is able to prove that the parent intended to adopt the child but did not do so during life for some reason. Equitable adoption is not easy to prove, as the child is required to prove the parent’s intent to adopt by “clear and convincing” evidence, which is a higher standard than the probate court typically requires. In 2004, the California Supreme Court rejected a foster child’s efforts to claim his share of his foster parent’s estate because the foster child had failed to present evidence the foster parent would have adopted him. In re Estate of Ford (2004) 32 Cal.4th 160.
Another critical difference between statutory and equitable adoption is that a person adopted through statutory adoption can inherit both from the parent and from the parent’s inheritance from others. For equitable adoption, however, you can only inherit from the parent and not from a grandparent through the parent. In 2002, the California Court of Appeals heard a case involving a woman whose mother divorced and remarried. Her step-father tried to adopt the woman, but the woman’s biological father could not be found. For some reason, even after reaching the age of majority, the woman declined adoption. When the woman’s step-grandmother died without a will, the woman asked to be declared an heir under equitable adoption. The Appeals court, however, refused to extend such inheritance rights to the woman and noted that equitable adoption could only establish a contractual right to receive property from a parent and not distant relative like a grandparent. Estate of Furia (2002) 103 Cal.App.4th.
Thus, equitable adoption in California allows a person to inherit from a parent without having to prove the existence of a “legal barrier” to adopt. But, while statutory adoption permits an individual to inherit from any relative of any degree, equitable adoption does not permit such inheritance.
If you are involved in intestacy litigation and need professional counsel, contact the highly reputable and experienced probate attorneys in Los Angeles at Keystone Law Group, P.C. As one of the leading probate law firms in Los Angeles, we will assess your situation and guide you step by step for a successful outcome. For further information or to schedule an appointment please contact us at 310.444.9060 or visit www.Keystone-Law.com.