Informal Adoption in Texas: What Is It?
Adoption by estoppel, otherwise known as informal or equitable adoption, is a lesser-known legal theory. While not commonly used, our team at Lovelace Law believes it can be a very important tool when dealing with non-traditional family relationships. Under an adoption by estoppel theory, a person who is neither a biological nor a formally adopted child of a decedent can be considered a child and legal heir of the decedent and be treated as such for inheritance purposes. In probate, this could change the inheritance landscape drastically, potentially affecting who is inheriting from a decedent and the individual inheritance amount for each heir.
More Practical Than It Seems
It almost sounds unbelievable – that a person who is neither the actual or adopted child of a person can be legally considered one through this informal adoption theory. But, if you think about it from a real-life point of view, the practical use of this theory may not be as unbelievable as you think.
For example, an individual or family may agree to take in a child who is the victim of abuse, or maybe from another family who cannot properly care for them. Perhaps a friend or family member passes away and someone steps up in a role as godparent for the deceased person’s child and begins to care for them as their own.
The more you think about it, the less surprising it may seem that many real-life scenarios exist that would justify the notion that, even if someone is not a biological or formally adopted child of a person, because these individuals took the person in and treated them as their own child, the eyes of the law would reflect that as well.
Texas Rules and Regulations for Informal Adoption
In Texas, in order to prove adoption by estoppel, the claimant must prove two elements: (1) the existence of an agreement to adopt and (2) performance by the child. The proponent of the adoption has the burden to prove these elements by a preponderance of the evidence, and circumstantial proof can be accepted. In breaking down the elements, the second element tends to be the easier of the two to prove, as “performance” by the child, for most courts, is the child conferring love, affection, and other benefits on the adoptive parent.
Essentially, performance by the child can be shown by the child exhibiting the characteristics of a normal parent-child relationship with the adopting parent. The first element, the agreement to adopt, is normally the more challenging to prove, and is much more fact specific. Common examples of facts tending to show an agreement to adopt existed include tax returns, insurance forms, school records, and unfinished/unfiled formal adoption forms. A common theme for the agreement to adopt element is that the adoptive parent represented to others that they were the parent of the child.
In probate, the existence and effect of this adoption by estoppel theory are important to understand no matter what capacity you are in – whether you are already a known child or heir of a decedent or whether you were a person taken in a treated as decedent’s child. Either way, a successful prove-up of this theory could drastically change the way a decedent’s estate is distributed.
Questions About Informal Adoption in Texas? Contact Lovelace Law
If you have questions or concerns regarding potential adoption by estoppel issues, or if you have any other estate planning or probate needs, the attorneys at Lovelace Law would be happy to sit down with you and discuss your options. Contact us now.