Adoption of Adult Niece Does Not Permit Double Inheritance

OCTOBER 5, 1998 VOLUME 6, NUMBER 14

It is possible in many states (including Arizona) for one adult to adopt another adult. In the most common instances, a stepparent will adopt his or her spouse’s adult child, often after having raised the child from an early age. Occasionally, however, adult adoption is used for other purposes.

Vivian Unsel, of Missouri, had no children. She was herself one of six children, and her father had left his interest in the family farm to her and her brothers and sisters. He had done so, however, by leaving them a “life estate” in the property, with the remainder interest (after the death of the last child) to be divided into six shares; each child’s share would then be divided among his or her children equally. Since Vivian Unsel had no children, her share would simply be divided among the children of her brother and sisters.

Vivian’s sister Lena had two children, including daughter Judith Daniels. Vivian decided that she would prefer her interest in the farm to go to Judith, and so she broached the idea of adopting Judith under Missouri’s adult adoption statute. Judith agreed, and the adoption was concluded in 1992.

Vivian Unsel died in 1996, and Judith made her claim to a one-sixth interest in the family farm. Most of Judith’s cousins then joined in a lawsuit seeking to have the inheritance set aside, arguing that the adoption was against public policy.

The Missouri trial judge disagreed, and found that Judith would inherit from her adoptive mother Vivian but not from her natural mother Lena. This would have the effect of giving a one-sixth interest in the farm each to Judith and her brother, rather than requiring them to split Lena’s interest when she died.

The Court of Appeals reversed that result. The appellate judges decided that if the adoption is allowed to stand Judith would still receive an inheritance from her natural mother Lena, and the adoption would therefore permit her to inherit two separate shares of her grandfather’s estate.

The court noted that the apparent purpose of the adoption was solely to permit Judith to inherit Vivian’s share of the farm. Judith did not live with Vivian, did not call her “mom,” and did not change her relationship with her natural mother in any way. Because of that, reasoned the judges, public policy requires that the adoption be ignored for purposes of distributing the estate. Vivian Unsel’s plan for getting her interest in the family farm to a favored niece was not successful. Unsel, et al v. Meier, et al, April 30, 1998.

Although there is no similar court case in Arizona, the adult adoption law itself is similar. Arizona permits the adoption of an adult stepchild, niece, nephew, cousin or grandchild. In some cases, foster parents can also adopt their foster children after they reach adulthood. The process is very simple, but does require an agreement signed by the two parties, and the consent of both of their spouses (if they are married and not legally separated). No consent is required from the natural parents of the adopted person; in fact, no notice of the adoption need be given to the parents. Arizona does require that the judge determine that the adoption is “in the public interest.”

Most often, adult adoptions are used to formalize a long-standing relationship between stepchildren and their stepparent. In order to adopt the minor children of a spouse, one must formally sever the parental relationship between the child and the natural parent. Since that is not required for an adult adoption, the process may be easier.

Arizona adult adoptees have the right to inherit from their new parents. Although Arizona law is not completely clear, they may also be in a position to inherit from their natural parents. At least in Arizona, adult adoption may be a way to have three (or more) parents simultaneously.

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