Adoption By Estoppel
In Texas, there is an inheritance theory known as adoption by estoppel; some call it a common-law adoption, which is not correct. Our inheritance lawyers are going to walk you through what estoppel is and how it works in the eyes of the law.
Defining Adoption by Estoppel
Adoption by estoppel is solely and strictly an inheritance theory, it is not a legal adoption. Adoption by estoppel occurs when a minor child is “raised” by an adult, not his or her parent, usually it is a male (but not required), but that acts in all ways as if the child was the decedent’s own. In other words, there is a parent-child relationship where the child, a minor, resides in the home with the adult (decedent) and conveys the normal love and affection of a child toward their parent and that same love from the parent to the child is reciprocated by the adult (decedent). Often, the child calls the parent dad or mom and the adult calls the child son or daughter.
This theory does not apply to an adult adoption; in other words, adults cannot move in with the other adult (decedent) and attempt to develop the same sort of relationship. The child must be a minor, while residing with the adult (decedent). In such instances, post-death, the family is prevented – or estopped – from denying that such a relationship existed and, for purposes of heirship, the child is treated as a full heir and inures to all the benefits (and burdens) of being an heir of the estate, which includes his or her full heirship share of inheritance from the decedent. Hypothetically, if there were three biological children of the decedent and one adopted by estoppel, then the children’s share of the estate is split four ways instead of three.
Adoption by Estoppel is Not a Legal Adoption
The question of whether an adoption by estoppel occurred is inherently an intense question. The key thing to remember about an adoption by estoppel is that it is not a legal adoption, which is why calling it a “common-law adoption” is a misnomer and incorrect. The important thing about it not being a legal adoption is the child can have “two daddies” so to speak. The rights of the biological father do not have to be terminated, as would be required in a legal adoption, for the adoption by estoppel to occur. The child gets to inherit from his or her biological mother, his or her biological father and his or her “adopted (by estoppel)” parent.
It can be a complicated area of probate law in Texas that some lawyers do not even understand. You should hire an attorney to represent you in pursuing such a claim and to navigate you through the process of the law and the facts needed to prove-up the inheritance interest.
By: Kevin Spencer- 2/9/17
Contact or call us at Spencer & Johnson, PLLC at (214) 965-9999, if you questions or want to know your rights.Back to Blog