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When Informal Adoption Meets Intestate Succession: The Cultural Myopia of the Equitable Adoption Doctrine

59 Pages Posted: 28 Aug 2007 Last revised: 12 Oct 2017

Michael J. Higdon

University of Tennessee College of Law

Date Written: August 26, 2007

Abstract

In certain circumstances, the equitable adoption doctrine allows a person to inherit as the child of a testator even when the testator was neither that person's biological or adoptive parent. Although this doctrine, at first blush, might appear to be a move toward a more inclusive system of intestate succession, as many scholars have noted, the restrictive tests that the various courts have designed to determine who qualifies as an equitably adopted child have only served to greatly undermine the utility of the doctrine and, in numerous cases, have led to the denial of rather compelling claims.

While agreeing with those criticisms, this article levels a new, more troubling, criticism against the equitable adoption doctrine. Specifically, the equitable adoption doctrine is both culturally-biased and discriminatory. Indeed, as it currently exists, the doctrine uses formal adoption, as that practice exists within the Eurocentric, nuclear family model, to define what qualifies as a parent-child relationship worthy of legal protection. In so doing, the doctrine effectively ignores the practice of informal adoption, which is much more prevalent in the extended family model found in African American and Hispanic communities. This article, thus, examines both the extended family model and the corresponding role that informal adoption plays within those two communities. Set against that backdrop, it becomes much more evident how the current law of equitable adoption not only is overly restrictive, but has the potential to be particularly punishing to our country's minority ethnic populations. With those concerns in mind, this article then offers two different proposals that would make the law of intestate succession more cognizant and inclusive of informally adopted children.

Suggested Citation

Higdon, Michael J., When Informal Adoption Meets Intestate Succession: The Cultural Myopia of the Equitable Adoption Doctrine (August 26, 2007). Wake Forest Law Review, Vol. 43, No. 223, 2008. Available at SSRN: https://ssrn.com/abstract=1009981 or http://dx.doi.org/10.2139/ssrn.1009981

Michael J. Higdon (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996
United States

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