May 2013 • Volume 101 • Number 5 • Page 222
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Illinois Supreme Court recognizes doctrine of equitable adoption
If parents treat a child they have not legally adopted as their own, he can pursue an inheritance even in the absence of their express or implied contract to adopt him, the high court rules.
For decades, Illinois courts have upheld adoption rights when evidence proves an express or implied contract to adopt, even if the underlying contract was legally flawed or otherwise insufficient.
However, the doctrine of contract-to-adopt does not establish rights for adopted children in the absence of an express or implied contract, even if circumstantial evidence proves the parents intended to care for the unrelated child as if it were their own.
In DeHart v. DeHart, 2013 IL 114137, the Illinois Supreme Court was presented with a fact pattern in which a now-deceased stepfather was alleged to have done just about everything a person can do to adopt a child, except for actually executing a statutory adoption contract.
Despite the alleged absence of any contract to adopt, a unanimous supreme court found in DeHart that equity and fairness should allow the man's son to pursue an inheritance from the father's estate, even though he was written out of the will at a time when his father allegedly lacked testamentary capacity.
"Although no Illinois court has expressly recognized the concept of equitable adoption as it is presented here, no Illinois court has expressly rejected it either," Justice Thomas wrote for the court. "We do find, however, that the underpinnings to pave the way for its recognition can be found in this court's earlier decisions."
In cases like those alleged in DeHart, where the father consistently and publicly treated his stepson as though he was his own blood relative - to the extent that the child himself believed he was his father's biological son - the child should not be denied his inheritance merely because his parents failed to comply with the statutory adoption process.
"We believe that in such cases there is every bit as much equitable justification for finding an equitable adoption as in cases where the plaintiff was merely incorrectly held out as the legally adopted child," the court wrote. "We believe that to not recognize an equitable adoption in such cases would work a 'deception and a fraud' and would be contrary to the decedent's intent to treat and continuously hold out the plaintiff as his or her natural child."
The facts of DeHart
The DeHart case is based on a six-count probate complaint that has yet to proceed to trial, having been summarily dismissed on all counts by the circuit court. The plaintiff alleged (1) that his father lacked testamentary capacity when he executed a new will removing plaintiff as an heir; (2) that his father's new wife exerted undue influence in creating the new will; (3) that she fraudulently induced him to sign the new will; (4) that she unlawfully interfered with plaintiff's expectancy; (5) that an adoption-by-contract existed; and (6) that in the absence of an adoption contract, an equitable adoption was established throughout the decades in which the father treated plaintiff as his biological son.
The appellate court reversed and remanded on all counts, and the supreme court affirmed. Both courts also reversed the trial judge's ruling to bar testimony by the attorney who drafted the new will, which both removed the plaintiff as an heir and established the new wife as the executor and primary beneficiary of the estate.
According to allegations recited in the supreme court's opinion, the late Donald DeHart married the plaintiff's biological mother, Virginia, more than 60 years ago when her son, James, was two. The parents held out both to individuals and institutions that James was Donald's only biological child, including that they obtained a birth certificate showing Donald as the natural father.
In 2000, when James obtained a certified copy of his birth certificate in order to apply for a U.S. passport, he learned for the first time that that Donald was not his biological father because the original certificate listed someone else. James confronted Donald with that information, at which time Donald said he had legally adopted James in 1946 with the help of a lawyer. Although no evidence of an adoption is in the record of this case, the court found that Donald and Virginia agreed to keep the purported adoption a secret precisely so that James would believe they were both his biological parents.
"As part of this agreement, Donald and Virginia agreed to celebrate their wedding anniversary, but never discuss how many years they had been married," the court found.
Despite having learned the truth, and despite his mother passing away in 2001, James, his children, grandchildren and church were all named as beneficiaries in Donald's original will.
However, in December of 2005, then 83-year-old Donald married a 54-year-old woman he met while she was working at a jewelry store, and who quickly became the executor of his estate. The day before their first wedding anniversary, Donald signed the new will, in which he stated, "I am married to Blanca DeHart. I have no children."
According to the court, "[t]he complaint further alleges that Donald demonstrated he was of unsound mind and memory when he signed the [new] will and could not remember plaintiff - now 61 years old - whom Donald had held out to all the world as his son for nearly 60 years."
Opening the door for 'modern families'
In allowing the plaintiff's case to proceed under the newly recognized equitable-adoption doctrine, probate lawyer Matthew R. Davison said the supreme court has opened the door for members of "modern families" to protect their rights whenever evidence shows it was the parents' intent not only to love and provide for a child but also to make that child a permanent part of their family.
"In a way, the DeHart decision is a tip of the cap to the modern family, or the blended family, which are ever-increasing in number. The nuclear family is not really that common anymore - we have a lot more Brady Bunches these days," Davison said. "The intestacy laws under the [probate] act are much more friendly to nuclear families, but this equitable-adoption doctrine is more friendly to the modern families."
Davison, an Arlington Heights-based sole practitioner and member of the ISBA Trusts and Estates Section Council, said equitable adoption is an old common-law theory that dates back at least as far as the formative years of American jurisprudence, "but this is the first time it's been expressly recognized by our state supreme court."
Having never directly considered equitable adoptions, the supreme court looked to other states for guidance on how to craft the law in Illinois.
"[T]he Supreme Court of West Virginia declined to take the view that an express or implied contract to adopt was absolutely necessary to establish that an equitable adoption had taken place where a person has 'stood from an age of tender years in a position exactly equivalent to a formally adopted child,'" the Illinois court wrote, quoting from Wheeling Dollar Savings & Trust v. Singer, 250 S.E.2d 369 (W.Va. 1978).
In Estate of Ford v. Ford, 82 P.3d 747 (Cal. 2004), the California Supreme Court also rejected the argument that a claimant must prove all the elements of an enforceable contract in order to establish inheritance rights as an adopted child.
"Ford, however, employed a stricter approach than the one adopted by the West Virginia Supreme Court in Wheeling. Ford held that to prove an equitable adoption, a claimant 'must demonstrate the existence of some direct expression, on the decedent's part, of an intent to adopt the claimant,'" the Illinois court found. "We believe that the California Supreme Court struck the proper balance in Ford, and therefore adopt its holding here."
In DeHart, the Illinois court found that the plaintiff pled adequate facts that, if proven true at trial, could establish as a matter of law that an equitable adoption existed, even if a contract to adopt did not.
"I think the court went to great lengths to say that DeHart is a narrow holding and that it won't be…applicable to many cases," Davison said. "But it really can be. Particularly when you have an intestate matter with stepkids, it's going to open the doors for those modern families a little more than they think."
[For more about DeHart, read this article by Oak Brook attorney Edward R. Sherman in the April 2013 ISBA Trusts and Estates newsletter. Sherman was involved in the appeal.]