Same-Sex Second-Parent Adoption and Intestacy Law: Applying the Sharon S. Model of 'Simultaneous' Adoption to Parent-Child Provisions of the Uniform Probate Code
30 Pages Posted: 23 Nov 2010 Last revised: 30 Dec 2010
Date Written: November 2, 2010
Due to a combination of state marriage laws and adoption statutes, most same-sex couples with children must make a very difficult decision - choosing which parent should be the legal parent. Most adoption laws state that when a natural parent participates in an adoption, this participation completely severs his or her legal rights. These laws leave the meaning of participation ambiguously broad and inclusive of processes such as second-parent adoption. Although state adoption laws often have a spousal/stepparent exception, which allows second-parent adoption without severing the biological parent’s legal parent-child relationship, this exception does not provide a solution to most same-sex couples living in states that do not provide legally effective same-sex partnerships.
The United States is currently enmeshed in a national debate over same-sex marriage. The debate is occurring in courtrooms as frequently as it occurs at the polls and in state and national legislatures. However, the legal system must address “trickle down” issues stemming from, but extending beyond, the task of simply determining the particular legal status that laws grant to a homosexual relationship. One of the major trickle down issues, though often left out of the public discourse, concerns parental determination for children of same-sex couples. Left even further outside pundit discussions, however, is how this parental determination for children of same-sex couples affects the children’s inheritance rights under the laws of intestate succession. The latter concern is the principal subject of this Note.
Second-parent adoption, in theory, provides an opportunity for a nonbiological parent to forge a legal relationship with his or her partner’s biological child (most of whom are either from a previous relationship or born to the couple through in vitro fertilization, surrogacy, or another similar alternative method). While second-parent adoption allows a heterosexual family with a stepparent to ensure a legal relationship between the child and both parents, similarly situated homosexual couples must overcome several obstacles. The most significant obstacle is what is known as the “cut-off provision,” which is present in most state adoption statues. The spousal/stepparent exception that prevents divestment of the legal relationship between the biological parent and child during a second-parent adoption remains unavailable for most same-sex couples living in states that do not grant the legal status of spouse to same-sex partners.
This Note analyzes the impact of the cut-off provision on same-sex couples and their children, focusing on the impact this legal doctrine has on intestacy law. Principally, the Note discusses the parent-child provisions in the Uniform Probate Code and argues that the “simultaneous” adoption solution, which Sharon S. v. Superior Court articulates, should extend beyond the context of adoption and parentage laws to the analogous cut-off provisions in intestate laws. When read to maintain legislative intent and ensure the best interest of the child, provisions in the Uniform Probate Code defining a legal parent-child relationship for the purposes of intestate succession should follow a presumption of simultaneous adoption. Courts should interpret the cut-off provision as a default, but waivable, benefit for the adoptive parent and not as a mandatory requirement. In the context of same-sex couples seeking second-parent adoption, this Note proffer simultaneous adoption in lieu of sequential adoption because simultaneous adoption would allow an adoptive parent to consent to the maintenance of the legal relationship between the natural parent and the child, meaning that a nonbiological same-sex partner’s adoption would not sever the right of the child to inherit from the biological parent.
Keywords: Same-Sex Marriage, Intestacy Law, Inheritance, Second-Parent Adoption, Fresh Start Policy, Probate, Uniform Probate Code, Bill of Rights, Constitutional Law, Family and Personal Law, Law and Politics, Property Law, Trusts and Estates, Adoption, Civil Rights, Equal Protection, Family Law, Homosexual
Suggested Citation: Suggested Citation