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In re Estate of Seader9/23/2003
es of action. Where these doctrines have been recognized, however, they have largely been treated as interchangeable, and all are based on the same theory: " ne who had agreed to adopt a child during his life, but for some reason did not, for inheritance purposes alone, will be considered to have [...] adopted [the child]." 2 Am.Jur.2d, Adoption, supra, § 43 at 918-19. Equitable adoption has been described as follows:
While a child to be adopted pursuant to an agreement between his natural parent and the adoptive parent cannot specifically enforce its adoption by the deceased adoptive parent, nevertheless, because of the agreement, he can obtain specific enforcement of the benefits that would accrue from such adoption -- this remedy is sometimes referred to as an equitable adoption.
The terms "equitable adoption," "virtual adoption," and "adoption by estoppel," have been used interchangeably by the courts. Generally speaking, the theory of recovery in an equitable adoption case is founded upon either equitable principles or upon the theory of estoppel. In the former it is a judicial remedy for an unperformed contract of legal adoption or, in the alternative, the ordering of specific performance of an implied contract to adopt. The estoppel theory operates to preclude a party from asserting the invalidity of a status of an "adopted" child for inheritance purposes. It has been said that a so-called "equitable adoption" is no more than a legal fiction permitting specific performance of a contract to adopt. Furthermore, the descriptive phrase "adoption by estoppel" has been described as a shorthand method of saying that because of the promises, acts and conduct of an intestate deceased, those claiming under and through him are estopped to assert that a child was not legally adopted or did not occupy the status of an adopted child.
An adoption by estoppel is an equitable remedy to protect the interests of a person who was supposed to have been adopted as a child but whose adoptive parents failed to undertake the legal steps necessary to formally accomplish the adoption; the doctrine is applied in an intestate estate to give effect to the intent of the decedent to adopt and provide for the child.
The doctrine is predicated on principles of contract law and equitable enforcement of the agreement to adopt for the purpose of securing the benefits of adoption that would otherwise flow from the adoptive parent under the laws of intestacy had the agreement to adopt been carried out; as such it is essentially a matter of equitable relief. Being only an equitable remedy to enforce a contract right, it is not intended or applied to create the legal relationship of parent and child, with all the legal consequences of such relationship, nor is it meant to create a legal adoption. The need for the doctrine arises when the adoptive parents die intestate; the doctrine is invoked in order to allow the supposed-to-have-been adopted child to take an intestate share. It is not applicable where the decedent dies testate.
2 Am.Jur.2d, Adoption, supra, § 53 at 929-30 (footnotes omitted). See also Rebecca C. Bell, Comment, Virtual Adoption: The Difficulty of Creating an Exception to the Statutory Scheme, XXIX Stetson L. Rev. 415, 419-30 (1999) (comparing estoppel and contract as bases for the theory) and Harvey A. Schneider, Comment, Equitable Adoption: A Necessary Doctrine?, 35 S. Cal. L. Rev 491, 492-96 (1962) (problems with contract theory).
Equitable adoption must be distinguished from adoption by contract, deed, or notarial act, a process recognized by statute in some jurisdictions. Where such methods of adoption are legislatively sanctioned, they result in a leg
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