IN RE THE MATTER OF DETERMINATION OF HEIRS OF OCTAVIA HODGE, DECEASED. ALDEN POOLE, APPELLANT,
v.
RUBY JEAN BURNETT, APPELLEE
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A Florida appellate court upheld a trial judge's determination that Ruby Jean Burnett qualified as an heir of the Hodge estate under the doctrine of "virtual adoption," despite never being formally adopted. The court held that an oral agreement to adopt, combined with sufficient performance by all parties, creates enforceable inheritance rights in an intestacy proceeding.
Burnett established all elements of virtual adoption necessary to claim inheritance rights: (1) an agreement to adopt existed, (2) her natural parents performed by giving up custody, (3) she performed by living in the Hodges' home, (4) the Hodges performed by taking her in and treating her as their daughter, and (5) the Hodges died intestate. She was not barred by laches because she was not the plaintiff and did not know of the lack of legal adoption until the litigation began.
[1] Virtual adoption may be established by proof of an agreement between natural and adoptive parents, performance by the natural parents in giving up custody, performance by…
[2] An oral or written promise to adopt may be enforced by a child in an intestacy proceeding to establish rights of inheritance.
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Join FLexlaw to unlock all legal intelligence“an oral or written promise to adopt may be enforced by the child in an intestacy proceeding to establish rights of inheritance”
States the fundamental principle of virtual adoption doctrine that allows enforcement of adoption agreements in intestacy cases
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Join FLexlaw to unlock all legal intelligenceWhen Burnett was three years old, her mother died and her father gave her to the Hodges with an understanding they would adopt her. Although no direct…
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DAUKSCH, Judge.
This is an appeal from a judgment determining heirs.
This case involves the rarity “virtual adoption.” When someone gives his or her natural child to another with an agreement that the other will adopt the child then the child will be deemed to have an enforceable contractual right. Sheffield v. Barry, 153 Fla. 144, 14 So. 2d 417 (1943); Roberts v. Caughell, 65 So. 2d 547 (Fla.1953); Laney v. Roberts, 409 So. 2d 201 (Fla. 3d DCA 1982); Habecker v. Young, 474 F. 2d 1229 (5th Cir.1973) (applying Florida Law).
The seminal, as appellate courts often say, case is Sheffield v. Barry, 153 Fla. 144, 14 So. 2d 417 (1943) where it was declared that an oral or written promise to adopt may be enforced by the child in an intestacy proceeding to establish rights of inheritance. The elements to be proved include:
1. an agreement between the natural and adoptive parents;
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 of the foster parents.
Appellee was three years old when her mother died and her father gave her to the Hodges. Although there was no one to testify directly that they heard or read an agreement to adopt, there was sufficient evidence in the record for the trial judge to conclude that there was an agreement to adopt. When Ruby was nine the Hodges told her she was not their natural daughter but was adopted. She lived with the Hodges until she married at age seventeen and was always called Hodge, loved as a daughter and responded in kind. Mr. Hodge was the president of her P.T.A. when she was in school, he signed her report cards, she paid his funeral expenses and attended his funeral. This is evidence in affidavit form to support the final summary judgment. No affidavit in opposition to these facts was presented. Landers v. Milton, 370 So. 2d 368 (Fla.1979).
We agree with the trial judge that all elements were established.
Appellant alleges laches or a statute of limitations applies and appellee should be barred from successfully asserting her right as an heir. Appellee was not the plaintiff and did not even know she had not been legally adopted until the plaintiff, appellant, brought it to her attention. She cannot suffer a laches bar under these circumstances.
AFFIRMED.
SHARP and COWART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Evergreen SOD Farms, Inc. v. Vontarous McCLENDON, 513 So. 2d 1311 (Fla. 1st DCA 1987)…in giving up custody of the child; (3) performance by the child by living in the adoptive parent’s home; (4) performance by the adoptive parent by taking the child into the home; and (5) the intestacy of the foster parent. Matter of Heirs of Hodge, 470 So. 2d 740 (Fla. 5th DCA 1985). The doctrine was originally accepted in Florida in the supreme court decision in Sheffield v. Barry, 153 Fla. 144, 14 So. 2d 417 (1943). It is predicated on principles of contract law and equitable enforcement of the agreement t…
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Mahala Tarver v. Evergreen SOD Farms, Inc., 533 So. 2d 765 (Fla. 1988)…also referred to as “equitable adoption” or “adoption by estoppel,” in many instances authorizes a claim for an intestate share of the foster parent’s estate. See, e.g., In re Estate of Walt?502 So. 2d 531 (Fla. 4th DCA 1987); In re Heirs of Hodge, 470 So. 2d 740 (Fla. 5th DCA 1985); J.E.W. v. Estate of Doe, 443 So. 2d 249 (Fla. 1st DCA 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); Rober…
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Miller v. A.E. Paczier ad Litem, 591 So. 2d 321 (Fla. 3d DCA 1991)…supposed to have been adopted as a child but whose adoptive parents failed to undertake the legal steps necessary to formally accomplish the adoption. See Sheffield v. Barry, 153 Fla. 144, 147-48, 14 So. 2d 417, 419 (1943); Matter of Heirs of Hodge, 470 So. 2d 740, 741 (Fla. 5th DCA 1985); Laney v. Roberts, 409 So. 2d 201, 202 (Fla. 3d DCA 1982); Annot., Modem Status of Law as to Equitable Adoption or Adoption by Estoppel, 97 A.L.R.3d 347 (1980). The need for the doctrine arises when the adoptive parents die…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Irving W. Landers et ux. v. Adelle L. Milton, 370 So. 2d 368 (Fla. 1979)
- Sheffield v. Cora Wittstock Barry, 153 Fla. 144 (Fla. 1943)
- Roberts v. Caughell, 65 So. 2d 547 (Fla. 1953)
- Laney v. Roberts, 409 So. 2d 201 (Fla. 3d DCA 1982)
- Habecker v. Young, 474 F.2d 1229 (5th Cir. 1973)