Virtual adoption is a doctrine developed by probate courts to cover certain situations where, for a variety of reasons, the formal probate process hasn’t been accomplished resultingin a legal adoption. A common example of the application of the doctrine is where foster children are granted inheritance rights from their foster parents without having been legally adopted. For an excellent academic discussion of the equitable doctrine, see the law review article published in the Washington & Lee Law Review.
The doctrine works like this: For example, couples frequently welcome a child into their home and treat it as a family member without ever legally adopting the child. This process occurs without any court involvement or visits to the local probate lawyer. However,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 courts of several states, which generally hold 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.
As a probate lawyer I have discussed and worked using the case of McMullen v. Bennis. Here, the 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 that worked its way through the probate process in a probate court. Before determining the validity of the will, the probate 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 will of record purportedly executed by the decedent, however, the parties disputed the validity of that will.
The court 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 appellate court court sent the case back to the probate court 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.”
Does Ohio recognize virtual adoption?
The issue of whether Ohio recognizes virtual adoption was discussed recently in an excellent 3 part series by Ohio’s leading probate lawyer Angela G. Carlin : Does Ohio Recognize Virtual Adoption. Attorney Carlin’s well stated point is that a survey of recent cases in Ohio suggest that It appears that in Ohio, if a court is presented with the right fact pattern, it is possible that the probate court may order an equitable result consistent with the policy underlying the virtual adoption cases and statues. These facts would likely require: (1) a written or oral agreement (2) by a person agreeing to adopt another person’s child (3) evidence of conduct sufficient to establish a virtual (though not statutory) adoption (4) where such conduct continues for a sufficient length of time by all interested persons.