by Brian R. Dolan and Joel M. Commerford
Sometimes a confluence of events conspires against an idea to make that idea seem preposterous. For instance, 20 years ago, the term “virtual” was understood to connote “nearly,” or “practically,” or “as good as.” Twenty years later, with the advent and proliferation of the desktop personal computer, hand-held PCs, PDAs, and the iPhone, the term “virtual” has come to be understood as “computer-related,” “geeky” or “nerdy,” and “cyber” anything. To a segment of society that has been “virtually adopted,” this is most unfortunate.
A Florida probate judge, who shall remain nameless, when confronted by an eager, young probate attorney who argued for the theory of virtual adoption for his client, rolled his eyes and visibly and audibly sighed in exasperation. As recently as the last few months, when one of the authors proffered the theory on behalf of a client, the presiding judge, who apparently had at least heard of the doctrine, asked “Does Florida recognize this?” Such is the general state of understanding of the doctrine of virtual adoption.
The client in both instances ultimately prevailed — after the respective courts were properly enlightened. To be sure, virtual adoption is known by other names: equitable adoption or adoption by estoppel, to name two. But it is the unfortunate moniker “virtual adoption” that has stuck most tenaciously to this little known, but useful, concept and which has caused attorneys and judges to put up barriers to the idea when confronted by a living, breathing client to whom the concept applies. What, then, is virtual adoption, and how can it best be applied?
Virtual Adoption Defined
Despite its regrettable name, virtual adoption is not a type of adoption practiced in the family law arena via the Internet. Rather, virtual adoption is a concept lying in the probate court, which allows for the virtually adopted child, who otherwise would be a stranger to his or her virtual adoptive parent’s estate, to take under the estate as a natural or legally adopted child. Prior to 1943, the Florida Supreme Court “found little sympathy” for the doctrine of virtual adoption. However, in considering the authorities cited in the seminal case,1 the court “became more impressed with its soundness” and recognized the doctrine in Florida.
No Florida court has specifically defined the term “virtual adoption.” A good working definition, however, is “a court given name to a status arising from and created by contract where one takes and agrees to legally adopt the child of another but fails to do so.”2 While the term has not been specifically defined, the elements of virtual adoption are well established in Florida. The Fifth District Court of Appeal concisely listed the following elements necessary to establish an effective virtual adoption:
A) An agreement [to adopt] between the natural and adoptive parents;
B) Performance by the natural parent[s] of the child in giving up custody;
C) Performance by the child by living in the home of the adoptive parents;
D) Partial performance by the foster parents in taking the child into the home and treating the child as their child; and
E) Intestacy of the foster parents.3
All five elements must be present,4 and these elements must be proven by clear and convincing evidence.5
John Q. Smith died intestate, survived by a stepdaughter by his second wife, and one “daughter,” Jane Doe (her married name). The stepdaughter successfully petitioned the probate court for administration and has been appointed personal representative of the estate of John Q. Smith. The personal representative has filed a petition to determine beneficiaries seeking to exclude Jane Doe as a beneficiary under Mr. Smith’s estate. This petition is based on allegations that respondent, Jane Doe, is not an adopted daughter of the decedent. The stepdaughter would be the only surviving heir of the decedent if Jane is deemed not to be a beneficiary of the decedent.6 The respondent, Jane Doe, contends, however, that the petition is without merit as her standing to inherit is established under the doctrine of virtual adoption. Jane contends that she was virtually adopted by Mr. Smith in her childhood.
An agreement [to adopt] between the natural and adoptive parents — The facts leading to the virtual adoption of Jane begin when she was found practically abandoned by her natural parents in her home. Through a series of events, Mr. Smith and his wife came to have custody of Jane, by the acquiescence of Jane’s biological mother. Thereafter, the Smiths filed the papers in the family court necessary to effectuate a statutory adoption of Jane, including the consent of the natural mother.7 Prior to the finalization of the adoption, Mr. and Mrs. Smith separated and eventually divorced. In the upheaval occasioned by the Smith’s divorce, the adoption proceeding was never finalized; however, looking to the adoption paperwork, an agreement between the Smiths and the natural mother is apparent. There can be no clearer evidence of an agreement between the natural and adoptive parents to adopt than the papers filed with the court in an adoption proceeding.
Performance by the natural parent[s] of the child in giving up custody — In the adoption proceeding, the natural mother consented to the adoption of Jane by the Smiths and gave up all parental rights. Thereafter, Jane, who was already in the custody of the Smiths, continued living with the Smiths. That the natural mother gave up custody of Jane is, therefore, beyond question.
Performance by the child by living in the home of the adoptive parents — Equally clear is the fact that Jane lived with the Smiths for the ensuing seven years prior to the Smiths’ divorce and continued to live with Mrs. Smith under the custody agreement until Jane married. The fact that Mr. Smith no longer lived in the marital home after the divorce, when Jane was over seven years old, in no way diminishes the fact that the child fully performed. In Laney v. Roberts, 409 So. 2d 201 (Fla. 3d DCA 1982), the Third District Court of Appeal noted that “[t]he performance required by the child is satisfied by living in the home of the adoptive parents.”8 In that case, the adoptive daughter was apparently estranged from her adoptive parents sometime in her adulthood. The court noted that even if the relationship “was distant — even nonexistent [in her adulthood] — such a fact does not serve to defeat [the adoptive child’s] claim.”9 In the hypothetical, the adoptive father left the family home due to divorce during the childhood of the adoptive daughter, but continued to maintain a father-daughter relationship throughout Jane’s childhood. The familial relationship giving rise to the virtual adoption is satisfied where the adoptive child lives in the home for some appreciable period during her childhood, as stated in Laney. That the child continues to live in what is left of the family home when one adoptive parent leaves, through no fault of the child, and maintains a relationship with both adoptive parents throughout her childhood, indeed throughout the rest of each of their lives, merely strengthens the child’s claim to virtually adopted status established when the family lived together as a family unit.
Partial performance by the foster parents in taking the child into the home and treating the child as their child — The Smiths took Jane into their home even before there was an agreement to adopt. During the pendency of the adoption proceedings, Jane continued living with the Smiths and remained living with Mr. and Mrs. Smith until their eventual divorce. Jane continued living with Mrs. Smith until Jane’s marriage. During her entire life, Mr. and Mrs. Smith considered Jane to be their adopted daughter. They held her out to their families and the community as their daughter. When Mr. Smith remarried, he acquired a stepdaughter, Martha Jones, the proponent of the petition to determine beneficiaries. Even Ms. Jones has demonstrated her belief that Jane is Mr. Smith’s adopted daughter. When Ms. Jones published the decedent’s obituary, she referred to Jane in a listing of survivors as decedent’s “one daughter.” Additionally, Mr. Smith’s second wife, Martha’s mother, was well aware of the paternal nature of Mr. Smith’s relationship with Jane. Specifically, Martha’s mother sent a booklet to Jane upon Jane’s high school graduation in which the second Mrs. Smith, Martha’s mother, stated, “John loves you dearly and always has, I’m definitely sure of this fact! He missed you terribly!” Finally, throughout her life until she married, Jane went by the name Smith in all her affairs. There can be no doubt that Mr. and Mrs. Smith treated Jane as their child from the time she came into their home and that Jane considered herself to be the daughter of Mr. and Mrs. Smith her entire life. The sheer volume of the evidence, in addition to the nature of that evidence, clearly establishes that Mr. and Mrs. Smith took Jane into their home and treated her as their own child during their entire lifetimes.
Intestacy of the foster parent — Finally, Mr. Smith died intestate. This fact is rarely in dispute when a question of virtual adoption arises. It is the question of whether the nonbiological “child” of the intestate decedent is entitled to a distributive share of the decedent’s estate that brings the matter to the fore. By the time this occurs, the estate has usually been opened, either testate or intestate as the facts provide. It is possible, of course, that a nonbiological child alleging virtual adoption may challenge the validity of a will admitted or offered for admission to probate in order to create an intestacy.
Rights Conferred by Virtual Adoption Status
Virtual adoption is an equitable remedy that puts the virtually adopted person in the position he or she would be in had the adoption been formalized — While it is true that “[t]he nature of equitable adoption is a remedy in equity to enforce a contract right, not to create the relationship of parent and child,”10 what may be equitably enforced is far from concrete. Equity, of course, is “grounded on the theory that what should have been done will be done.”11 As the Florida Supreme Court has stated, “[t]he true meaning of these maxims of equity is that equity will treat the subject matter, as to collateral consequences and incidents, in the same manner as if the final acts contemplated of the parties had been executed exactly as they ought to have been”12 The doctrine of virtual adoption specifically is intended “to avoid unfair results from the application of intestacy statutes.”13 Though the cases to date have directly addressed only inheritance under intestacy statutes, they do not specifically limit application of the doctrine to inheritance issues.
Virtual adoption confers upon the adoptive child the same inheritance rights as a naturally born or normally adopted child — The authorities are clear and unanimous that virtual adoption confers upon the virtually adopted child a right to inherit from the intestate estate of his or her adoptive parent.14
Virtual adoption should be extended to confer standing to be appointed personal representative and to include other rights of a child — It is a natural extension of the established principles that virtual adoption should also embrace the collateral issues of the appointment of personal representatives and other issues under the intestacy statutes. Florida courts have never addressed the question of whether virtual adoption confers upon the virtually adopted person eligibility to be appointed as personal representative of the estate. Close reading of the various authorities, however, suggests that virtual adoption should be extended to confer such eligibility upon the virtually adopted person.
The Third District Court of Appeal has stated that, “what can be enforced by such an action [virtual adoption] is the establishment of filiation15 where the child can be shown to have been virtually adopted.”16 As such, the virtually adopted child should be treated under the intestacy statutes as any other child of the decedent.
While scarce, courts have recognized applications of virtual adoption status to issues outside the immediate scope of the intestacy statutes. For instance, in Williams v. Dorrell, 714 So. 2d 574 (Fla 3d DCA 1998), the Third District Court of Appeal reasoned that a virtually adopted person was entitled to the rights of an heir under the homestead provisions of the Florida Constitution and Florida Statutes, ruling that descent of homestead property inures to the benefit of a virtually adopted child in the same manner as to natural or legally adopted children of an intestate decedent.17 Though not at issue in that case, presumably the protection from claims of the decedent’s creditors adhering to homestead property would likewise inure to the benefit of a virtually adopted child. Moreover, Georgia has recognized the virtually adopted child’s right to file a caveat in a probate action to protect the virtually adopted child’s rights. The Georgia Supreme Court stated:
[a] person claiming an interest in the estate of a testatrix, by reason of a virtual adoption, has such an interest in the estate as will authorize him to file a caveat to the will of the testatrix, when by the probate of such will he will be deprived of such interest. A contrary holding would deny to a party at interest in the estate, other than as heir, an opportunity to attack the probate, and thereby as against such party make the probate conclusive, thus defeating his interest in the estate of the testatrix.18
The Florida Probate Code provides that preference in appointment of personal representative in intestate estates be given to “[t]he heir nearest in degree.”19 It is indisputable that a person deemed to have been virtually adopted is an heir in the second degree (behind the surviving spouse) for inheritance purposes.20 As an heir, it is a natural adjunct, then, that a virtually adopted person would hold the same position as any other heir with regard to appointment as personal representative. The court’s reasoning in Dorrell supports this conclusion.21 Furthermore, the Florida Probate Code provides that the first priority (after the surviving spouse) is “the person selected by a majority in interest of the heirs.”22 As the sole heir, then, Jane would be the only heir in interest and could select herself as personal representative.
As has been stated, “[v]irtual adoption is an established doctrine usually invoked to avoid an unfair result from the application of intestacy statutes.”23 For instance, under F.S. §732.103(5), a stepchild is an heir of the fifth degree. Conferring personal representative status upon a stepdaughter, especially one to whom the decedent only became acquainted via a second marriage after that stepdaughter’s adulthood, as in our hypothetical, over a virtually adopted daughter that the decedent considered his daughter for her entire life could easily be an unfair result. Similarly, where an intestate decedent is survived by multiple children, including a virtually adopted child, excluding the virtually adopted child from the benefits conferred upon the decedent’s natural or legally adopted children could be equally unfair. In the absence of the decedent’s expressed preference, the virtually adopted child should have the same preference under the statutes.
Combining all these disparate parts into one cogent whole, then, it could reasonably be stated that virtual adoption is intended to put the virtually adopted person in the same position as that of a person naturally born of or formally adopted by the decedent as that relationship is affected by the intestacy statutes. Such a status would necessarily include not just inheritance rights, but the rights, duties, and obligations inherent in administering the estate of an intestate parent, particularly the right to preference in appointment as personal representative under the Florida Probate Code.
Including the cases noted earlier, in which the learned jurists rolled their eyes and sighed in exasperation, or inquired of the attorney promoting virtual adoption for his client whether Florida recognizes the doctrine, there are relatively few cases of record addressing this issue. These cases have run the gamut regardless of class, race, or locale. Anecdotal evidence suggests that most attorneys and judges have never run across this issue at all. The authors have been involved in at least three cases in the past five years in which virtual adoption played a key part. While this number of cases in a relatively short time may be a fluke, it may also be a harbinger. The current generation of decedents, many surviving into their 80s and 90s, were born in the 1910s, 1920s, and 1930s, and reached prime childrearing age as early as the early 1940s, at a time when, perhaps, the country as a whole was less sophisticated, and a looser definition of familial relationships and adherence to adoption laws may have been more normal than in today’s litigious and rule-oriented society. If this is the case, a spike in virtual adoption cases in the coming years might be expected, making a working knowledge of the concept a handy tool for probate practitioners, and making a clear declaration by the courts on what rights are conferred by the doctrine of virtual adoption a necessity.
1 Sheffield v. Barry, 14 So. 2d 417, 419 (1943).
2 Miller v. Paczier, 591 So. 2d 321, 322 (Fla. 3d D.C.A. 1991).
3 In re the Heirs of Hodge, 470 So. 2d 740, 741 (Fla. 5th D.C.A. 1985).
4 In re Estate of Musil, 965 So. 2d 1157 (Fla. 2d D.C.A. 2007).
5 Williams v. The Estate of Pender, 738 So. 2d 453 (Fla. 1st D.C.A. 1999); Musil 965 So. 2d at 1161.
6 Fla. Stat. §732.103(5).
7 Jane’s paternity has never been established.
8 Laney v. Roberts, 409 So. 2d 201, 203 (Fla. 3d D.C.A. 1982).
10 Grant v. Sedco Corp., 364 So. 2d 774, (Fla. 2d D.C.A. 1978).
11 Habecker v. Young, 474 F.2d 1229 (5th Cir. 1973).
12 Bear v. Standard Accident Insurance Co., 168 So. 18 (1936).
13 Tarver v. Evergreen Sod Farms, Inc., 533 So. 2d 765, 767 (Fla. 1988).
14 Sheffield, 14 So. 2d 417 (1943) (virtual adoption “may be enforced by the child to secure a share in the estate of the foster parent”); Williams v. Dorrell, 714 So. 2d 574 (Fla 3d D.C.A. 1998) (virtually adopted heirs are “entitled to receive the decedent’s property under Florida’s intestacy statutes”); Urick v. McFarland, 625 So. 2d 1253 (Fla. 2d D.C.A. 1993); Miller v. Paczier, 591 So. 2d 321 (Fla. 3d D.C.A. 1991) (“the doctrine [of virtual adoption] is invoked in order to allow the supposed-to-have-been adopted child to take an intestate share”).
15 Black’s Law Dictionary (7th ed.) (defines “filiation” as “the fact or condition of being a son or daughter; relationship of a child to a parent”).
16 Lane, 409 So. 2d at 202.
17 Dorrell, 714 So. 2d at 574.
18 Ezell v. Mobely, 129 S.E. 532 (Ga. 1925).
19 Fla. Stat. §733.301(2)(c) (emphasis added).
20 Fla. Stat. §732.103(1).
21 Dorrell, 714 So. 2d at 576.
22 Fla. Stat. §733.301(2)(b).
23 Habecker, 474 F.2d at 1229.
Brian R. Dolan received his J.D. from the Shepard Broad Law Center of Nova Southeastern University, and obtained his B.S. degree from Northwestern University. Mr. Dolan is an associate in the law firm of Camp & Camp, P.A., in Ft. Lauderdale. Mr. Dolan concentrates his practice in the administration and litigation of estates, trusts, and guardianships.
Joel M. Comerford received his J.D. from the Shepard Broad Law Center of Nova Southeastern University, and obtained his B.S. degree from Florida Atlantic University. Mr. Comerford is principal shareholder in The Comerford Law Firm, P.A., in Boca Raton. Mr. Comerford practices primarily in the areas of wills and trusts, and probate and trust administration.
This column is submitted on behalf of the Real Property, Probate and Trust Law Section, John B. Neukamm, chair, and William P. Sklar and Richard R. Gans, editors.