In re Estate of Seader9/23/2003
al adoption status that is no different from the status that arises from a decree of adoption in a judicial proceeding. 2 Am.Jur.2d, Adoption, supra, § 43 at 918. Equitable adoption, on the other hand, "is never viewed as the equivalent of a formal adoption, in terms of establishing a parent-child relationship, and is merely a status invented by courts of equity as a means of allowing a child in an appropriate case to enjoy part of the advantage of adoptive status." 18 Proof of Facts 2d, Equitable Adoption § 1 at 543 (1979).
The elements of equitable adoption are (1) an implied or express agreement to adopt the child; (2) reliance on that agreement; (3) performance by the natural parents in giving up custody; (4) performance by the child in living in the home of, and in acting as the child of, the adoptive parents; (5) partial performance by the foster parents in taking the child into their home and treating the child as their child; and (6) the intestacy of the foster parents. Lankford v. Wright, 347 N.C. 115, 489 S.E.2d 604, 606-07 (1997); 2 Am.Jur.2d, Adoption, supra, § 54 at 932-33. In granting summary judgment to Neil J. and Charles, the district court made no findings of fact in regard to any of these elements. Instead, summary judgment was granted on the ground that Wyoming has not recognized equitable adoption. In this situation, we will assume that the facts favor Kirk and Kim, as the opponents of summary judgment, although we are troubled by the lack of verified facts in the record.
The majority of states recognize equitable adoption in one form or another, although the doctrine has been explicitly rejected in others. Almost exclusively, the application of the doctrine has been limited to intestate estates. See, for example, Calista Corp. v. Mann, 564 P.2d 53, 61 (Alaska 1977); Estate of Wilson, 111 Cal.App.3d 242, 168 Cal.Rptr. 533, 534 (1980); Barlow v. Barlow, 170 Colo. 465, 463 P.2d 305, 306 (1969); Miller v. Paczier, 591 So.2d 321, 322 (Fla.App. 1991); Roberts v. Caughell, 65 So.2d 547, 547 (Fla. 1953); Franzen v. Hallmer, 404 Ill. 596, 89 N.E.2d 818, 821 (1950); and Lankford, 489 S.E.2d at 607. It generally has not been applied to testate estates. In re Estate of Wall, 502 So.2d 531, 532 (Fla.App. 1987). See also Rebecca C. Bell, supra, XXIX Stetson L. Rev. at 435-39 (does not apply to testate estates, but only to intestate estates where the decedent's intent is unknown). In addition, the doctrine is generally limited to the equitably adopted person's attempt to inherit from an intestate adoptive parent, and is not used to enforce the right of the adoptee to inherit from collateral kindred nor to enforce the right of collateral kindred to inherit from the adoptee. Heien v. Crabtree, 369 S.W.2d 28, 30 (Tex. 1963); Stanley P. Atwood, Comment, Virtual Adoption and Rights of Inheritance, XXI Wash. & Lee L. Rev. 312, 317 (1964).
Wyoming has not incontrovertibly recognized equitable adoption, even in intestate estates. Three cases, however, deserve mention because they touch on similar or related issues. In Nugent v. Powell, 4 Wyo. 173, 33 P. 23, 24 (1893), the mother of a child who had been abandoned by the father consented to the child's adoption by a childless couple. Statutory adoption was pursued to completion, with the exception of the probate court's failure to enter the adoption order of record. Id. at 25. Upon the intestate death of the adoptive father subsequent to the death of the adoptive mother, the siblings of the deceased adoptive father sought distribution of his estate to themselves, claiming that the child's adoption was ineffective. This Court reversed the district court's decree favoring the deceased's siblings on the ground that there had been su
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