Open Adoption, Inheritance, and the Uncleing Principle

40 Pages Posted: 22 Apr 2008 Last revised: 6 Jun 2015

See all articles by E. Gary Spitko

E. Gary Spitko

Santa Clara University - School of Law

Date Written: 2008

Abstract

This article critiques current inheritance law relating to adopted children in light of the purposes of modern adoption law and the increasing prevalence of open adoptions. The article proposes an uncling principle to determine intestate inheritance rights in cases of open adoption in which a birth parent has maintained a qualifying functional relationship with the adopted-out child subsequent to the adoption. When applicable, the uncling principle would treat the adopted-out child and her birth parent as potential heirs of one another. Unlike the presently dominant all-or-nothing approach to inheritance rights arising from adoption, however, the proposal would not under any circumstances treat the birth parent as a legal parent of the adopted-out child for purposes of inheritance. Rather, the uncling principle would treat the birth parent as an uncle or aunt to the adopted-out child, and would similarly increase the distance on the family tree between the adopted-out child and members of her birth family by one line of inheritance and two degrees of kinship. When applicable, the uncling principle would better serve the interests of the adopted child, her adoptive family, and her birth family than does the all-or-nothing approach, under which the adopted-out child is either a child of her birth parents for purposes of inheritance or is a stranger to her birth parents for purposes of inheritance. The uncling principle affirms the parental role of the adoptive parents by refusing to treat a birth parent as a legal parent. Simultaneously, the uncling principle recognizes and validates the importance of the bond between the adopted child and her birth family when the birth parent has maintained a sufficient functional relationship with the adopted child subsequent to the adoption.

Keywords: Adoption, Intestacy, Inheritance

Suggested Citation

Spitko, E. Gary, Open Adoption, Inheritance, and the Uncleing Principle (2008). 48 Santa Clara Law Review 765-804 (2008). Available at SSRN: https://ssrn.com/abstract=1123655

E. Gary Spitko (Contact Author)

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States
408-551-1771 (Phone)

HOME PAGE: http://www.scu.edu/law/FacWebPage/Spitko/

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