PR 01505.001 Alabama
A. PR 05-148 Wage Earner: Larry K. C~, No. ~ Potential Equitable Adoption of Granddaughter, Lori K~, in Alabama
DATE: March 30, 2004
Under Alabama law, the claimant may be entitled to benefits as the equitably adopted child of her grandfather when the deceased number holder took all necessary steps toward her adoption but the adoption petition is silent on the issue of inheritance rights. This is based on the fact that the child already has inheritance rights through her relationship as a grandchild prior to the beginning of the adoption efforts and because the Alabama statute states that an "adoptee shall be treated as the natural child of the adopting parent or parents and shall have all rights and be subject to all of the duties arising from that relation, including the right of inheritance."
Can Lori K~ (Lori) qualify for Child's Insurance Benefits as the equitably adopted child of her grandfather, wager earner Larry K. C~ (Larry)?
For the reasons stated below, we believe Lori qualifies as Larry's equitably adopted child under Alabama law.
Lori was born September 8, 1991, to Jennifer L~ C~ (Jennifer) and Bryan S~ K~ (Bryan). However, because Jennifer was in prison, Lori had been living with Larry, her grandfather, for more than a year prior to July 2003. Larry filed adoption papers with the probate court on August 1, 2003. Included with these papers are signed statements of Jennifer and Bryan in which they consent to the adoption of Lori by Larry. Thereafter and before the adoption became finalized, Larry died on August 16, 2003.
As indicated in OGC's prior memorandum dated February 10, 2004, some states recognize through judicial determination that an adoption has taken place in equity, even when all the criteria for a formal, legal adoption have not taken place. Alabama is among the states that recognizes equitable adoption, "but only within carefully articulated limits." Glaze v. Richardson, 438 F.2d 120, 121 (5th Cir. 1971) (citing e.g., Robinson v. Robinson, 215 So.2d 585 (Ala. 1968); Luker v. Hyde, 45 So.2d 32 (Ala. 1950); Rivers v. Rivers, 200 So. 764 (Ala. 1941); Marietta v. Faulkner, 126 So. 635 (Ala. 1930)). However, the Alabama Supreme Court explained that "[e]quitable adoption is rarely recognized in Alabama …." Samek v. Sanders, 788 So.2d 872, 875 (Ala. 2001).
The Alabama Supreme Court set forth the standard for a court to find an adoption in equity. First, the court must generally find "an intent to adopt." Samek, 788 So.2d at 875. On the "rare occasions" when the Alabama Supreme Court or the Alabama Court of Civil Appeals recognized an equitable adoption, those courts required proof of "a definite contract …, not only to adopt, but to adopt so as to permit the adoptee to inherit, and the contract was one for which specific performance could be enforced." Samek, 788 So.2d at 875; (citing C.H.H. v. R.H., 696 So.2d 1076, 1078 (Ala. 1996); Prince v. Prince, 69 So. 906 (Ala. 1915) (benchmark case allowing for equitable adoption in Alabama)); see also Glaze, 438 F.2d at 121 (must have a contract to adopt, supported by consideration, and sufficient in form to become the subject of specific performance). In both recent cases, the Alabama Supreme court found insufficient evidence to support an equitable adoption. See Samek, 788 So.2d at 875-76 (finding an absence of a specifically enforceable contract that could provide the basis of an order of specific performance); see also C.H.H., 696 So.2d at 1078-79 (finding that there was no indication of an agreement that the child would inherit any of decedent's property).
Here, we find that Larry took all the necessary steps towards accomplishing a legal adoption. His intent to adopt is clearly indicated by his filing of signed adoption papers. Moreover, Lori's natural parents, Jennifer and Bryan, consented to the adoption. Also, Lori had been living with Larry up to the adoption. The only issue was whether the adoption included an agreement that Lori was to inherit from Larry. We feel that this issue in this case would not serve to negate the existence of an equitable adoption for two reasons. First, as Larry's granddaughter, she had inheritance rights from Larry, albeit secondarily through Jennifer. This may explain why the adoption petition did not specify inheritance rights. Indeed, the proposed petition is silent regarding inheritance. Moreover, the Alabama statute states that an "adoptee shall be treated as the natural child of the adopting parent or parents and shall have all rights and be subject to all of the duties arising from that relation, including the right of inheritance." ALA. CODE § 26-10A-29 (a). Therefore, if the adoption had become finalized, Lori would have automatically obtained direct inheritance rights from Larry. One Alabama Supreme Court decision seems to imply that inheritance rights must be specifically indicated in the petition. See C.H.H., 696 So.2d at 1078-79. Although an equitable adoption was denied in C.H.H., in part because there was no indication of an agreement that the child would inherit any of decedent's property, that adoption was not by a direct relative from whom the child could already inherit and that case involved other questionable facts relating to proof of the adopting parent's intent. The same issues do not appear present here.
For the foregoing reasons, we believe Lori can be considered the equitably adopted child of Larry.
Mary Ann S~
Regional Chief Counsel
Assistant Regional Counsel