Adult Adoptions as an Estate Planning Tool

Many people utilize a will, a trust, or some other standard form of estate planning to ensure that their loved ones are provided for upon their death.  However, in Florida, individuals have an additional estate planning tool: adult adoptions.  Under Florida Statute § 63.042, a husband and wife, an unmarried adult, or a married person without the other spouse joining as a petitioner may adopt an adult.  The statute does provide certain limitations, for example, if a married person wants to adopt without the other spouse joining as a petitioner, then the non-joining spouse must consent to the adoption.  However, a court can excuse this requirement.  Generally, Florida’s adoption statute is less restrictive than similar statutes in other states because it does not impose the common age difference requirement.  Under this requirement, there must be a certain age difference between the party being adopted and the party wishing to adopt in order for the adoption to be legal.  This means that in Florida an adult is able to adopt another adult regardless of age.

A common reason for adoption is to protect the adopted adult’s inheritance rights.  Before the nation-wide legalization of same-sex marriage, same-sex couples used adult adoption as a way to protect each other’s inheritance rights.  However, the benefits of Florida’s adoption statute are not limited to same-sex couples and can be a useful tool in many other circumstances.  For example, for the purpose of intestate succession under Florida law, an adopted person is treated as a descendant of the adopting parent and is “one of the natural kindred of all members of the adopting parent’s family.”  Fla. Stat.  § 732.108(1).  This means that when an adopting parent dies intestate, meaning that they died without a will, the adopting parent’s intestate estate may pass to the adopted adult in the same way as if related by consanguinity.  Also, the adopted adult can inherit from members of the adopted parent’s family and is not limited to inheriting from just the adopted parent.

An adult adoption can also help the adopted party if a will is challenged.  Under Florida Statute § 732.5165, an entire will or parts of a will can be revoked if found to have been executed under fraud, duress, mistake, or undue influence.  The fact that an adult was adopted and subsequently made a beneficiary to a will may persuade a trier of fact that the testator, the person who made the will, acted under her own free will in including the person as a beneficiary.  The outcome of this particular scenario would likely depend on many other factors, but an adult adoption can be used as one of the many tools to assist in defending against a will contest.  This is especially beneficial in Florida because Florida does not recognize no-contest clauses in wills.  Fla. Stat. § 732.517.  A “no-contest clause” is intended to discourage individuals from contesting a will.  Therefore, a will can be contested for any reason without the contesting beneficiary having to worry about losing all or part of her inheritance.

This post is intended to be a brief overview of Florida’s statutes pertaining to adult adoptions.  Those interested in how the statutes will personally affect them should consult an attorney.  Please do not hesitate to contact the attorneys of Chepenik Trushin LLP, who are ready, willing, and able to assist with your estate planning needs.