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