San Antonio Express-News
Copyright 2009, Paul Premack
July 28, 2009

Is "son" adopted? Can he inherit?

Dear Mr. Premack: I did not know my biological father. The man I regard as my father passed away this spring. I was raised by him and my mother, and I always used his last name. However many years ago, when I needed to get a passport, I was told that the name on my birth certificate was my official name. At that point, I got a formal court ordered name change so I could proceed with my passport. Later, my mother divorced him and he married someone else, but we stayed close. His wife spoke to his other three kids to arrange the funeral, and left me out of the process. I feel I should be treated as one of his kids, but I am being told I am not a child from my father and that makes me NOT a legal heir to his estate, only the three birth children are heir to his estate! Do I need to hire an attorney? Can I proceed with an adoption by estoppel claim? His estate is not large, but I feel hurt to not be included and would certainly appreciate anything to hand down to my children regardless of the amount from my dad. - CDG

In your letter, you disclose that the man who raised you was your stepfather. You took his name but there is no mention that he took any courtroom action to adopt you. Emotionally, you consider him to be your father, and you wish to be treated as part of the family. The question does not hinge entirely on how you saw the relationship; legally, it also depends on how he saw the relationship. He may have been no more than your mother’s husband, or he may have had intent to be treated as your legal father.

Before addressing your status, you need to look to his other intentions. Whether he considered you to be one of his children or not, he was able to control who would inherit his estate no matter to whom he was or was not related. There is a difference between having statutory inheritance rights because of family status versus having legal inheritance rights pursuant to a Last Will and Testament.

Your letter does not mention whether he had a Will. Find out if he had one, and whether you are mentioned in it. If he included you, then your legal status as stepchild or adopted child makes no difference. His instructions about distributing his estate must be followed, and you must receive whatever he gave you in his Will. If he left a valid Will but did not include you in it, he was issuing instructions that are legally binding: the devisees he named in the Will are the only people who should inherit from him. If he left you out, then whether you are classified as his stepchild or as his adopted child does not matter: you do not receive any portion of his estate.

The other possibility, of course, is that he never bothered express his instructions in a Will. If so, the laws of intestacy apply and his children inherit the bulk of his estate. If so, your legal relationship to him matters very much. You are not a biological child, but you may be able to claim to be his child under the legal theory of equitable adoption by estoppel.

Texas courts have ruled that the “elements necessary to establish an adoption by estoppel are (1) the existence of an agreement to adopt and (2) performance by the child”. Definitely hire an attorney if you decide to pursue this claim in court. In court, you have the burden to prove that he had agreed with your mother to adopt you, and to prove that you “performed” by acting like his child (by, as the court said, bestowing love and doing tasks expected of a child, like mowing the lawn or taking out the garbage).

Conversely, you will not have to prove you knew about the agreement to adopt, or that your “performance” as a child was due to the existence of the agreement. I cannot speak to the facts or how you might fare if you bring a legal action, but it is likely that your mother (his ex-wife) would be an important witness regarding the existence of an agreement to adopt. If a court rules in your favor, then your status as his child becomes a legal reality and you receive a portion of his estate along with his other children under the Texas laws of intestacy.