IN RE THE ESTATE OF MARION BENTLEY WALL, ROHAN KELLEY, AS GUARDIAN AD LITEM FOR TERRY P. BENTLEY, A MINOR, APPELLANT,
v.
FLAGSHIP NATIONAL BANK OF BOYNTON BEACH, A NATIONAL BANKING ASSOCIATION, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MARION BENTLEY WALL, DECEASED, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
This appeal concerns whether the doctrine of virtual (equitable) adoption applies in a testate estate to allow a grandchild to claim homestead law benefits. The court affirmed the trial court's dismissal of the petition, holding that virtual adoption is generally inapplicable when the decedent dies testate and left a will specifically providing for the child.
The doctrine of virtual adoption does not apply where the decedent dies testate. The court affirmed the dismissal of the petition, though it left open the possibility that exceptional circumstances (such as where the adoption is pretermitted and the testator had no opportunity to change the will) might permit virtual adoption in a testate estate.
[1] The doctrine of virtual adoption is generally inapplicable when the decedent dies testate.
[2] Virtual adoption requires proof of an agreement to adopt, reliance by the natural parent, and treatment of the child as the decedent's own.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Virtual adoption is established when it is shown that the decedent agreed to adopt the child, the natural parent acted in reliance, and the child is treated as the child of the decedent.”
Establishes the three-element test for proving virtual adoption
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMarion Bentley Wall was the grandmother and legal guardian of her grandson Terry Bentley, whom she had custody of at the time of her death. Marion Wal…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Virtual Adoption cases and more on FLexlaw
STONE, Judge.
This is an appeal from an order in a probate proceeding dismissing a Petition to Determine Virtual Adoption. The decedent, Marion Bentley Wall, was the grandmother and guardian of Terry Bentley and had custody of her grandson at the time of her death. Marion Wall specifically provided for Terry in her will. Through a guardian ad litem, Terry filed the petition to claim the benefits of the homestead law. Fla. Stat. § 732.401, § 732.4015; Fla. Const. Art. X, Sec. 4. The trial court determined that the doctrine of virtual adoption, sometimes referred to as equitable adoption, is inapplicable where the decedent dies testate. We affirm.
Virtual adoption is established when it is shown that the decedent agreed to adopt the child, the natural parent acted in reliance, and the child is treated as the child of the decedent. See In Re Heirs of Hodge, 470 So. 2d 740 (Fla. 5th DCA 1985). See also, Roberts v. Caughell, 65 So. 2d 547 (Fla.1953); Sheffield v. Barry, 153 Fla. 144, 14 So. 2d 417, 420 (1943). Petitioner alleges such an agreement in this case.
The doctrine is usually applied in an intestate estate to give effect to the intent of the parties on the theory that equity regards that as done which ought to have been done. Roberts, 65 So. 2d at 548; Sheffield, 14 So. 2d at 419. See also, Korbin v. Ginsberg, 232 So. 2d 417 (Fla. 4th DCA 1970). Application of the doctrine, however, does not change the status of the child to that of a legally adopted child. See In Re Adoption of R.A.B., 426 So. 2d 1203, 1206 (Fla. 4th DCA 1983); Grant v. Sedco Corp., 364 So. 2d 774, 775 (Fla. 2d DCA 1978).
It is not necessary in this appeal for us to determine whether other circumstances might permit the finding of a virtual adoption in a testate estate. (For example, where the “adoption” is pretermitted and the testator had no opportunity to change the will.) See Thomas v. Maloney, 142 Mo.App. 193, 126 S.W. 522 (1910). See also, Annot. 97 A.L.R.3d 347 (1980). Nor is it necessary for us to determine whether a child who has otherwise been found to be entitled to the benefits of virtual adoption may make a claim under the Florida Homestead Law. See, e.g., Grant v. Sedco Corp., 364 So. 2d 774. However, we do conclude that no such exceptional circumstances apply here. Accordingly, we affirm the judgment below.
HERSEY, C.J., and DOWNEY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Mahala Tarver v. Evergreen SOD Farms, Inc., 533 So. 2d 765 (Fla. 1988)…te. We reluctantly agree. The theory of virtual adoption, 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);…
-
Kupec v. Cooper, 593 So. 2d 1176 (Fla. 5th DCA 1992)…red and Wasyl Kupec were to die intestate, Walter could use the theory of equitable adoption to inherit a share of his estate. However, application of this doctrine does not change his status to that of a legally adopted child. In re Estate of Wall, 502 So. 2d 531 (Fla. 4th DCA 1987). Equitable adoption could only affect his rights against the intestate estate of Wasyl Kupec. It does not affect his rights against the intestate estate of his natural father, Mikola Polschenko. Adoption was unkown at common law…
Authorities Cited
- Sheffield v. Cora Wittstock Barry, 153 Fla. 144 (Fla. 1943)
- Roberts v. Caughell, 65 So. 2d 547 (Fla. 1953)
- In re the Matter of Determination of Heirs OF Octavia Hodge v. Burnett, 470 So. 2d 740 (Fla. 5th DCA 1985)
- Grant v. Sedco Corp., 364 So. 2d 774 (Fla. 2d DCA 1978)
- Mel Robert Matalon Korbin v. Ginsberg, 232 So. 2d 417 (Fla. 4th DCA 1970)
- In re the Matter of the Adoption OF R.A.B., 426 So. 2d 1203 (Fla. 4th DCA 1983)