Wednesday, August 15, 2007

VIRTUAL ADOPTION [FLORIDA]

A child is given over by his natural parent to adoptive parents. The adoptive father raises the child, and then passes away without a last will. The child seeks to receive his intestate share of his adoptive father's property, but finds out that no formal adoption occurred. The child asserts that even though he was never actually adopted, he was "virtually adopted" and thus should receive his intestate share. Florida statutes make no mention of the concept – does the child have any rights?

A recent Florida case confirms that virtual adoption does indeed exist in Florida. Reviewing the case law on the unusual subject, the appeals court laid out the five necessary elements that need to be present to make a case for "virtual adoption" in regard to inheriting property from a deceased adoptive parent:

  1. an agreement between the natural and adoptive parents (regarding the transfer of custody and providing for the adoption);


  2. performance by the natural parents of the child in giving up custody;


  3. performance by the child by living in the home of the adoptive parents;


  4. partial performance by the foster parents in taking the child into the home and treating the child as their child; and


  5. intestacy (dying without a last will) of the foster parents.

If virtual adoption is found, the child's rights to property are based on contract principles.

In the instant case, one of the elements was missing, so virtual adoption was held not applicable.

In re Estate of Ladislav Louis Musil, deceased. GERALDINE DOUGLASS, Appellant, v. ROSA FRAZIER, as Curator of the Estate of Allen Frazier, deceased, Appellee. 2nd District. Case No. 2D06-2114. Opinion filed August 15, 2007.

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