JOE EDWARD GRANT, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF FRANCES W. GRANT, DECEASED, APPELLANT,
v.
SEDCO CORPORATION, C. R. PARKER, AND CONTINENTAL INSURANCE COMPANY, APPELLEES
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The Florida District Court of Appeal addressed whether the doctrine of equitable adoption allows a minor child to recover under the Florida Wrongful Death Act when the child was not legally adopted by the decedent. The court held that equitably adopted children cannot recover under the Wrongful Death Act because the statute is in derogation of common law and requires strict construction.
The court held that an equitably adopted child cannot recover under the Florida Wrongful Death Act. The Wrongful Death Act is in derogation of common law and must be strictly construed, and the Act only provides recovery for spouses, minor children, parents, and certain dependents—not equitably adopted children.
[1] The doctrine of equitable adoption cannot authorize a claim under the Florida Wrongful Death Act on behalf of a minor who is neither the natural nor legally adopted child…
[2] The Florida Wrongful Death Act defines "survivors" to include only natural children and legally adopted children, not those claiming an equitable adoption.
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Join FLexlaw to unlock all legal intelligence“Can the so-called doctrine of "equitable adoption" be applied to authorize a claim under the Florida Wrongful Death Act on behalf of a minor who is neither the natural child nor the legally adopted child of a decedent?”
The certified question presented to the court, establishing the central legal issue in the case.
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Join FLexlaw to unlock all legal intelligenceFrances Grant entered into a contract with Mikel Marks's natural mother whereby Grant agreed to take custody of the child when Marks was approximately…
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OTT, Judge.
The following question has been certified to this court:
Can the so-called doctrine of “equitable adoption” be applied to authorize a claim under the Florida Wrongful Death Act on behalf of a minor who is neither the natural child nor the legally adopted child of a decedent?
We answer the question in the negative.
When Mikel Marks was approximately 3 days old, his natural mother entered into a contract with Frances Grant a/k/a Mattie Brooks whereby the natural mother agreed to surrender Mikel Marks to Frances Grant. Frances Grant failed to legally adopt Mikel Marks. In December, 1975 — when Mikel Marks was approximately 3% years old— Frances Grant was killed in an automobile accident. Her personal representative brought a wrongful death action, asserting a claim on behalf of Mikel Marks.
The Florida Wrongful Death Act — § 768.-18, Florida Statutes (1977) — is on point. That statute provides:
(1) “Survivors” means the decedent’s spouse, minor children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the illegitimate child of a mother, but not the illegitimate child of the father unless the father has recognized a responsibility for the child’s support.
(2) “Minor children” means dependent unmarried children under 21 years of age . . ..
[Emphasis supplied.]
We hold that an equitably adopted child cannot recover under the Wrongful Death Act. In Limbaugh v. Woodall, 121 Ga.App. 638, 175 S.E. 2d 135 (1970) the court was faced with a similar issue. The court held that under Georgia law which provided for the recovery by “a child or children” for the wrongful death of a parent, a child equitably adopted could not recover under the Georgia Wrongful Death Act. The court held:
[T]he terms “child” or “children” as used in our wrongful death statutes do not encompass one claiming to be like a child as to another acting in loco parentis, even when such relationship obtains under an agreement to “adopt” but the legal adoption has never transpired. 175 S.E. 2d at 137. The Georgia court pointed out that there must be a strict construction of the Wrongful Death Act since that statute is in derogation of the common law. In addition, the court noted that the doctrine of equitable adoption had never been extended beyond decreeing in the child a right to inheritance or a right to receive as a beneficiary under some types of insurance policies.” 175 S.E. 2d at 138.
Although the limitations upon recovery by an equitably adopted child might seem harsh, the Florida Wrongful Death Act does not compensate all those aggrieved by the death of another. It only compensates some and in certain ways. The nature of equitable adoption is a remedy in equity to enforce a contract right, not to create the relationship of parent and child. A minor child that is neither the natural child or legally adopted child of a decedent simply has no claim under the Florida Wrongful Death Act.
GRIMES, C. J., and RYDER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Laney v. Roberts, 409 So. 2d 201 (Fla. 3d DCA 1982)…ption” or “adoption by estoppel,” while authorizing a claim for an intestate share of the adoptive parent’s estate, has been held not to authorize a claim by a virtually adopted child under the Florida Wrongful Death Act. Grant v. Sedco Corporation, 364 So. 2d 774 (Fla.2d DCA 1978). . It is no impediment to the action that the agreement to adopt be oral, since if, arguendo, such an agreement is within the statute of frauds, the very proof required to establish entitlement to relief, performance by the child…
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Evergreen SOD Farms, Inc. v. Vontarous McCLENDON, 513 So. 2d 1311 (Fla. 1st DCA 1987)…of the intestacy statutes, Laney v. Roberts, 409 So. 2d 201 (Fla. 3d DCA 1982), and being only an equitable remedy to enforce a contract right, it is not intended or applied to create the legal relationship of parent and child. Grant v. Sedko Corp., 364 So. 2d 774 (Fla. 2d DCA 1978); In re Adoption of R.A.B., 426 So. 2d 1203 (Fla. 4th DCA 1983). Accordingly, the Second District, in Grant, concluded that the doctrine had “never been extended beyond decreeing in the child a right to inheritance or a right to re…
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Mahala Tarver v. Evergreen SOD Farms, Inc., 533 So. 2d 765 (Fla. 1988)…1983), review denied, 451 So. 2d 848 (Fla.), appeal dismissed, 469 U.S. 1030, 105 S.Ct. 499, 83 L.Ed.2d 392 (1984); Laney v. Roberts, 409 So. 2d 201 (Fla. 3d DCA 1982); Roberts v. Caughell, 65 So. 2d 547 (Fla.1953). However, in Grant v. Sedeo Corp., 364 So. 2d 774 (Fla. 2d DCA 1978), the theory of virtual adoption has been held not to authorize a claim by a virtually adopted child under the Florida Wrongful Death Act. In Grant, the district court answered the following question in the negative: “Can the so-ca…
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