By Thelma Lizama
When we hear the words “gay adoption[1]” we typically think of same sex couples fulfilling their desires of being parents. However, there is another kind of gay adoption that has not been discussed as openly, both inside and outside the gay community. [2] Although the idea of adopting the person you are intimate with seems unconventional, adopting an adult for the purpose of making the person a legal heir has been an accepted practice for many years. [3] In fact, most intestacy statutes draw no distinction between the adoption of a minor and the adoption of an adult, and few states allow spouses to adopt each other.
Before the Supreme Court made same-sex marriage legal in all 50 US states, adult adoptions became a common way for gay couples to ensure that their property would pass on to their partners. The adoption protected the intent of the decedent and served as a shield for the surviving partner. In order for a relative to challenge a will or intestate succession where there was such an adoption, a relative would first have to overturn any adoption by the decedent. But unlike marriages, adoptions are much harder to annul and often require a showing of fraud.[4]
In addition to the inheritance benefits, adult adoptions also provided tax benefits and hospital visitation rights. By no means however was this a quick fix to marriage inequality as some states expressly prohibited the use of adoptions to legalize relationships. New York, for example, prohibits the use of adult adoptions, under the guise of parent and child, for the purpose of legally formalizing an adult relationship between sexual partners.[5]
Now that same-sex marriage has been legalized, adult adoptions have created a new hurdle. The couples that were prompted to adopt each other and pretended to be something they were not, a father and son, or a mother and daughter, in exchange for medical, financial and legal benefits, now find themselves stuck and facing possible legal repercussions.
According to Courtney Joslin, a professor of law at University of California, Davis, same-sex couples who marry without voiding the adoption may be subject to a “criminal incest statute” in some states. [6] Currently twenty-five states consider “relationships between adoptive parents and their adult children within the definition of incest.”[7] Although some couples have been successful in getting the adoption vacated, many couples remain stuck in a parent-child relationship because many courts are limiting adoption annulments to cases of fraud. [8]
For the couples that find themselves in a legal limbo, their future rests in the hands of judges who have the power to vacate their adoptions. This however shows that, as is often the case, the law is always behind the developments of society, and all we can do is hope that it eventually catches up.
[1] The Ultimate Gay Adoption Guide, Laws.Com, https://adoption.laws.com/gay-adoption (defining a “gay adoption” as the adoption of a child by a person of a different sexual orientation from the majority).
[2] See generally Elon Green, The Lost History of Gay Adult Adoption, The N.Y Times Magazine, Oct. 19, 2015, https://www.nytimes.com/2015/10/19/magazine/the-lost-history-of-gay-adult-adoption.html (providing examples of gay couples who went through adoptions).
[3] See, e.g., Minary v. Citizens Fid. Bank & Trust Co., 419 S.W.2d 340 (Ky. 1967) (holding that an adult adoptee is the legal heir of the adopting party only and in this case the wife was not eligible to inherit under the provisions of her husbands mother’s will.)
[4] E.g., In re Adoption of Patricia S., 976 A.2d 966 (Me. 2009) (“To succeed in overturning the eighteen-year-old adoption decree in this case, the trustees must prove fraud by clear and convincing evidence.”).
[5] See N.Y. Domestic Relations Law § 110 (McKinney 2010); See also Matter of Adoption of Robert Paul P., 63 N.Y.2d 233 (1984) (holding that an adoption statutes may not be used as a quasi-matrimonial vehicle to provide nonmarried partners with a legal imprimatur for their sexual relationship, be that relationship heterosexual or homosexual in nature).
[6] Diane Anderson-Minshall, Why some Couples Must Undo Adoptions to Marry, Advocate.com, Jan. 8, 2016, https://www.advocate.com/current-issue/2016/1/08/why-some-couples-must-undo-adoptions-marry
[7] Id.
[8] See, e.g., Gay couple, 78 and 76, who were declared ‘father and son’ have adoption vacated now that they can legally marry, DailyMail.com, May 22, 2015, https://www.dailymail.co.uk/news/article-3093168/Gay-couple-adoption-vacated-marry.html; see also, Alexandra Sims, Gay couple who were technically ‘father and (adoptive) son’ seek right to marry each other, Independent, Nov. 4, 2015, https://www.independent.co.uk/news/world/americas/father-son-couples-request-to-marry-each-other-rejected-by-judge-a6720596.html