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Equitable Adoption in Texas

Texas recognizes equitable adoption, also known as adoption by estoppel, in which a child will be given some legal rights as a child under Texas law, including the right to inherit.

How Does Texas Recognize Equitable Adoption?

The Texas Supreme Court in 1934 first recognized equitable adoption, in the case of Cubley v. Barbee, 73 S.W. 2d 72 (Tex. 1934).  With respect to the right to inherit, Texas enacted a statute that expressly provides for the recognition of equitable adoption, at Section 22.004 of the Texas Estates Code:

(a) “Child” includes an adopted child, regardless of whether the adoption occurred through:
(1) an existing or former statutory procedure; or
(2) an equitable adoption or acts of estoppel.
(b) The term “child” does not include a child who does not have a presumed father unless a provision of this code expressly states that a child who does not have a presumed father is included.

In Dampier v. Yearnd, 493 S.W.3d 118 (Tex. App. 2016) the Court held that

Adoption by estoppel, however, is not a statutory doctrine; it is a judicially-created equitable doctrine.  The Estate Code does not outline a “statutory” procedure for a child to be adopted by estoppel. Thus, the statute does not create a right to adoption by estoppel. Instead, it recognizes that a person may be a child under the equitable doctrine of adoption by estoppel and allows the courts to determine the confines of the doctrine.

Texas case law will set forth the parameters of equitable adoption for inheritance purposes.

How Do You Prove Equitable Adoption in Texas?

To prove equitable adoption under Texas law, the adopted child must prove, first, the existence of an agreement by the parent to adopt the child, and, second, performance by the child in terms of having shown love and affection to the parent and render services such as a child would render to a parent.   The Dampier case further explained how the existence of the first prong, the agreement, can be established:

A child has been adopted by estoppel “when a natural parent delivers a child into the custody of others under an agreement between the parent and the custodians that the child will be adopted, and thereafter the custodians and child live in a relationship consistent with that of parent and child.” Luna, 906 S.W.2d at 580. To establish that an agreement existed, the child must prove that the parent either (1) executed “a statutory instrument of adoption in the office of the county clerk”; (2) attempted to complete the statutory adoption but failed “to do so because of some defect in the instrument of adoption, or in its execution or acknowledgement”; or (3) agreed with “the person to be adopted, or with such person’s parents, or some other person in loco parentis that he or she would adopt such person.” Lowrey v. Botello, 473 S.W.2d 239, 240-42 (Tex. Civ. App.—San Antonio 1971, no writ). “In no case” has a Texas court “upheld the adoptive status of a child in the absence of proof of an agreement or contract to adopt.” Id. at 241. Such an agreement may be oral. See King v. Heirs & Beneficiaries of Watkins, 624 S.W.2d 252, 255 (Tex. App.—Tyler 1981, writ ref’d n.r.e.); Howell v. Thompson, 190 S.W.2d 597, 600 (Tex. Civ. App.—Galveston 1945, no writ). Adoption by estoppel must be established by a preponderance of the evidence. Moran v. Adler, 570 S.W.2d 883, 885 (Tex. 1978).

Does Equitable Adoption in Texas Apply to Adults?

No.  As explained by the Dampier case, equitable adoption does not apply to adults in Texas:

In * * * Grant v. Marshall, the Texas Supreme Court stated that “the existence of a contract to adopt [the child] while she was a minor . . . is an essential element of adoption by estoppel.” 154 Tex. 531, 280 S.W.2d 559, 564 (Tex. 1955)

Unlike a person who is adopted when he is a child and has “no will or choice of [his] own in the matter,” Thompson held that justice did not require that “an adult, who is capable of caring for himself and contracting for himself” at the time of the adoption be protected by the doctrine of adoption by estoppel.

Allowing an adult to be adopted by estoppel “would greatly extend the doctrine and surely open the door to many fraudulent claims.” See Thompson, 125 S.W.2d at 862. Such an extension would open the door to abuse by “persons who have assisted and befriended the elderly during the last years of their life” and, after the decedent’s death, claim the decedent “adopted” them by estoppel. Hemphill v. Jackson, 306 S.W.2d 610, 612 (Mo. Ct. App. 1957).


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