PR 01510.031 Nevada
A. PR 82-018 Charlotte E~, DWE, ~, Ray E~ Claimant Equitable Adoption
DATE: June 29, 1982
INHERITANCE RIGHTS—By Adopted Child
A child is considered adopted and thus entitled to share in the inheritance of intestate personal property if there is consent to adopt by the natural parent and an agreement to adopt by the adopting parents without a formal adjudication of adoption. The agreement to adopt need not be expressed. It may be implied from the statements and conduct of the parties.
(E~, Charlotte, ~ (F~) Region IX to DIRo, IPB 6/29/82)
The wage earner, Charlotte E~, died June 16, 1980, domiciled in Nevada. Her surviving spouse, Sidney E~, filed an application for surviving child's benefits on behalf of the claimant, Ray E~. The claimant was born in Phoenix, Arizona, on February 13, 1966. On February 15, 1966, his natural mother, Bonnie G~ , signed a document entitled "Consent to Adoption," which stated that she relinquished her "rights as a parent" of the claimant to the wage earner and the wage earner's husband at that time, Clifford M. S~. That document also requested — and gave Ms. G~ consent to an order of adoption by "any court of competent jurisdiction." Apparently, the wage earner was living in Nevada at the time; the relinquishment for adoption was arranged in Arizona. The Stones were divorced in February 1975. The claimant remained with the wage earner. The wage earner married Sidney E~ in November 1975; they were still married and living together (with the two children) when the wage earner died. The wage earner never judicially adopted the claimant. You inquired whether or not the claimant could qualify as the equitably adopted child of the wage earner.
The wage earner was domiciled in Nevada when she died. Therefore, pursuant to section 216(h) (2) (A) of the Act, we must assess the claimant's status under Nevada's laws respecting the devolution of intestate personal property. 42 U.S.C. §416(h) (2) (A). Section 127.60 of the Nevada Revised Statutes provides that an adopted child shall inherit from his/her adoptive parents or their relatives to the same extent as would a legitimate child of such parents.
Because the claimant was never judicially adopted, an equitable adoption is the only possible way for him to qualify as the wage earner's "adopted child." The initial determination which you must make is whether the underlying facts would support a finding that an equitable adoption of the claimant by the wage earner occurred. The key elements required initially are (1) relinquishment of the child by the natural parent(s), (2) in return for their promise (orally or in writing) to adopt the child, shown by clear and convincing evidence. Relinquishment is clearly satisfied by the "Consent to Adoption" form in the claims file, but the promise to adopt given by the parties receiving the child is not clear from documents currently in the file. The contemporaneous agreement to adopt need not be express; it may be implied from the acts, conduct, and admissions of the "adopting" parties. Virtually nothing in the claims file addresses the specific issue of the wage earner's and Clifford S~ unequivocal promise to adopt the claimant at the time of his relinquishment. Further development must be undertaken to establish that the requisite contract to adopt was made between Ms. G~ and the S~. (Sidney E~ intention to adopt the children years later is irrelevant; you must focus on the agreement, if any, between the natural mother and Charlotte and Clifford S~ in 1966.)
Assuming that you find (upon further inquiry) sufficient facts to support the existence of an unequivocal agreement to adopt, it may appear that conflict of laws problem arises: is the effect of the agreement judged using Nevada or Arizona law? In this case, however, the conflicts issue need not be addressed, because both jurisdictions follow the same well-established body of law on equitable adoption. You are already familiar with Arizona law on the subject. See GC opinion re: James C. G~ D-1!396, June 1, 1966; see also In re L~'s Estate, 90 Ariz. 363, 368 P.2d 318 (1962). We believe that Nevada courts would take an identical approach in assessing whether a child was equitably adopted.
In our opinion re William M. P~, D-4576, July 22, 1959, we indicated (based upon dictum in Forsyth v. Heward, 41 Nevada 305, 170 P. 21 (1918), and the absence of any contrary judicial decisions) that the courts of Nevada would specifically enforce a bare (oral) contract to adopt. The more recent case of Bower v. Landa, 78 Nev. 246, 371 F.2d 657 (1962), provides further support for the proposition that Nevada courts would recognize and enforce equitable adoptions, utilizing the same general principles as most other states (including Arizona). Bower involved an action by the surviving brothers and sister of a decedent for his wrongful death. A person claiming to be the equitably adopted child of the decedent intervened. That intervenor had been declared the equitably adopted child of the decedent by a Utah probate court. Speaking to how Utah courts treat equitable adoption contracts, the Nevada Supreme Court stated (at 661)
. . . Utah follows the weight of authority and will enforce such contracts specifically. We are of the opinion that Nevada should do likewise. This being true, if [the decedent] had left any estate in Nevada, [the equitably adopted child] would have been entitled to inherit from decedent to the same extent as if he had actually been adopted as agreed.
Therefore, if the parties' actions and statements at the time the claimant was given to the wage earner satisfy the elements required for an equitable adoption (as clearly set out in the G~ opinion, cited above), the claimant would qualify for benefits on the deceased wage earner's account.
See "Request for Verification of Birth" dated 8-1-80 (in claims file).
Bonnie G~ apparently was not married to the claimant's natural father (named as John H~ on the birth certificate).
The divorce decree does not refer to the claimant at all, although it awards custody of the S~ natural child, Shawnee, to the wage earner.
The general rule is that if a contract to adopt is made in one state to be performed in another, the essential validity of the contract is governed by the law of the place of performance. Mutual Life Ins. Co. of New York v. Brenton, 34 F. Supp. 859 (W.D. Mo., 1940).
A copy of this opinion appears in the claims file.