PR 01510.020 Kentucky

A. PR 83-009 Robert C. M~ Deceased - SSN ~, Claim for Child's Benefits - Kentucky Law

DATE: May 4, 1983


EQUITABLE ADOPTION — KENTUCKY In Kentucky, there is no current persuasive authority that the doctrine of equitable adoption is recognized nor does there currently exist any such authority that Kentucky would recognize a contract of adoption made in some other State.

(Robert C. M~, deceased, SSN ~, Claim for Child's Benefits - Kentucky Law, RAIV [Williams], to Assoc. Comm., OPP, 4-25-83)


In your memorandum dated September 30, 1982, you asked whether Kentucky recognizes the theory of equitable adoption and whether Kentucky recognizes a contract of equitable adoption created by the law of a State having jurisdiction to create it. The Program Operations Manual System (POMS) GN 00306.385 (State Laws on Equitable Adoption) addresses these issues and states Kentucky would not recognize equitable adoption under such circumstances. Your request was prompted by a recent decision by an administrative law judge who relied upon Radar v. Celebrezze, 253 F.Supp. 325 (E.D. Ky. 1966), in concluding that Kentucky would recognize an equitable adoption undertaken in another State.

In order to fully appreciate the distinction between Radar v. Celebrezze, supra, and the present matter, it is necessary to discuss some of the facts and administrative proceedings in the Radar case. In Radar, the child was born in Ohio in 1957 to the 16-year-old stepdaughter of the insured. The insured, his wife and his stepdaughter agreed that the insured would pay all medical and hospital expenses incident to the child's birth provided the stepdaughter (child's natural mother) agreed that the insured could raise the child as his own to include subsequently adopting the child. The stepdaughter agreed. On March 22, 1966 the insured applied for disability benefits while still domiciled in Ohio and discussed the child in that application explaining he had not yet adopted the child because he lacked the money to do so. However, the child had been in his care and custody since she was four days old. The insured's application was finally approved on May 24, 1962 effective December 31, 1960. At the time of approval, however, the insured, his wife and the child had moved from Ohio to Kentucky. The child was subsequently adopted by the insured in a Kentucky Court on August 31, 1962. Although the insured's wife and child's applications filed after the adoption were denied, the hearing examiner determined that the insured's original application for disability benefits filed in Ohio constituted an application for child's benefits as well as an application for disability benefits. It was this original application filed while the insured was domiciled in Ohio which was the basis for the determination favorable to the child by the hearing examiner and ultimately the Radar court.

The hearing examiner in Radar reasoned that since the insured was domiciled in Ohio at the time of his original application for disability benefits (which the hearing examiner also treated as an application for child's benefits,) the laws of Ohio governed the issue of equitable adoption, and the laws of Kentucky had no bearing and were not applicable. The hearing examiner further found that Ohio did recognize the doctrine of equitable adoption and that an equitable adoption had taken place in Ohio in the year 1957. Therefore, the hearing examiner concluded that the child was entitled to child's benefits based upon the application filed by the insured on March 22, 1961. The Appeals Council did not accept the decision of the hearing examiner and denied the child benefits because it concluded the applicant was not the child of the insured. Unlike the hearing examiner, the Appeals Council applied Kentucky law to determine the child's status.

Faced with these administrative proceedings, the Radar court held that the decision of the Appeals Council should be reversed and set aside and that the hearing examiner's decision should be affirmed and reinstated. In so holding, the Radar court adopted the finding of the hearing examiner that Ohio law governed because the application was filed in Ohio. Kentucky law was totally irrelevant in the Radar case.

Although the Radar court does discuss equitable adoption in Kentucky as dicta in response to a statement by the Appeals Council that "the doctrine of equitable adoption is not generally recognized in Kentucky," its cited authority is not supportive of its conclusion on equitable adoption in Kentucky for several reasons.

First, only one of the several cases cited by the Radar court involved the concept of equitable adoption and this was Davis v. Celebrezze, 239 F.Supp. 608 (S.D.W.Va. 1965). However, this case involved the application of the West Virginia's law of equitable adoption where the Secretary had conceded that such a doctrine would be recognized in West Virginia under the proper circumstances. There was absolutely no citation or reference to any Kentucky law of equitable adoption in Davis. The Davis case is relevant only to the application of the law of West Virginia. The other cases cited by the Radar court (Pyle v. Fisher, 128 S.W.2d 726 (1939), Edmonds v. Tice, 324 S.W.2d 491 (1959), Moore v. Smith, 14 S.W.2d 1072 (1929)), all involve valid judgments of adoption procured pursuant to the statutory laws of Indiana, Washington and Colorado, respectively. In each of these cases, the Kentucky Courts followed the rule set out in Pyle v. Fisher, supra, with regard to these adoption judgments:

"the status acquired by adoption in one State will be recognized in another and the rights of the child to inherit will be given effect as to property located in the latter State, (Kentucky), provided such rights are not inconsistent with those incident to the status of adoption created in such State or with the laws and policies of such State." (P. 726)

Since the three above-mentioned States which had rendered adoption judgments and the State of Kentucky all allow an adopted child to inherit from his adoptive parents, these Kentucky Courts found no conflict in law or policy and recognized the foreign adoption judgments in these cases.

Unlike these cases cited by the Radar court, the present matter concerns the concept of equitable adoption under Kentucky law and not the question of whether Kentucky will recognize a valid adoption judgment of a sister State. It is this distinction which renders the Radar court's reliance upon these cases involving adoption judgments of no persuasive value on the issue of the doctrine of equitable adoption in Kentucky.

The doctrine of equitable adoption is inconsistent with Kentucky's law and policy. Kentucky has historically refused to recognize or enforce contracts to make a child an heir as contrary to public policy. Davis v. Jones, 22 S.W. 331 (1893). Under Kentucky law, the legislature has determined that certain parties can make unrelated persons heirs through strict adherence to the adoption statute and by no other means. Davis v. Jones, supra. Additionally, Kentucky Courts specifically have refused to apply any equitable principles in adoption proceedings. Carter v. Capshaw, 60 S.W.2d, 959 (1933); Higgason v. Henry, 313 S.W.2d, 275 (1958); Goldfuss v. Goldfuss, 565 S.W.2d 441 (1978).

The right of adoption is in force in Kentucky only by virtue of statute and such adoption laws are intended to be comprehensive and all inclusive on the subject of adoption. Stanfield v. Willoughby, 286 S.W.2d 908 (1940); Goldfuss v. Goldfuss, supra; Carter v. Capshaw, supra. Based on continued adherence to public policies of longstanding and the absence of any known persuasive authority to the contrary, it is the opinion of this office that Kentucky does not recognize the doctrine of "equitable adoption" and would not recognize such a status even if the contract of adoption were made in some other State. Pyle v. Fisher, supra.

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PR 01510.020 - Kentucky - 04/17/2002
Batch run: 11/29/2012