Pg 6 Flashcards
What is equitable adoption?
An equitable basis for letting a child share in someone’s estate via the theory of quasi-contract. If the natural parents relinquish custody of a child in reliance on an express or implied promise that a foster parent will legally adopt the child, but then the foster parent doesn’t adopt the child, the court allows the child to recover from the foster parent’s estate because of the detrimental reliance by the natural parents in giving up custody.
Is equitable adoption recognized under the UPC?
No
What is the rationale behind equitable adoption?
The child is the intended third-party beneficiary of a quasi-contract between the natural parent and the foster parent, so only the child [not the foster parent] can benefit and inherit
If two people have a child and one of them dies, and the other one cannot provide for the child, so he finds a rich man and lets that man raise the child with the agreement that the child will be well taken care of, but that rich man never adopts the child, and then the rich man dies, can the child inherit from that rich man?
Yes, if he can show there was an express or implied agreement between the parent and the rich guy to transfer custody so that the child could have inheritance rights. Then the court will enforce the agreement in equity. But the rich man cannot inherit from the child. California recognizes this
If children are born out of wedlock, does that affect their right to inherit from a parent?
No, as long as paternity can be established by clear and convincing evidence
If a parent wants to inherit from a child that is born out of wedlock, what must he do?
Establish a biological connection and show that he actually functioned as a parent
What circumstances make it so that natural parents cannot inherit from a child?
- if the parent’s parental rights were terminated
– if the parent didn’t acknowledge the child
– if the parent left the child during childhood without any effort to provide for the child or communicate
What is the marital presumption with regard to children and parentage?
If a mom is married and a child is born during that marriage or within 300 days of a marriage ending, the husband is presumed to be the father
How can you rebut the marital presumption?
With clear and convincing evidence that the husband was not the father. This type of proceeding must happen within two years of a child’s birth if you want to rebut the marital presumption, otherwise it is barred.
If a child is conceived while a parent was alive but then born after a parent dies, how does inheritance work?
Inheritance is treated as if the child was born in the lifetime of the decedent
If two people were married, and the wife was pregnant, and then five months later the husband was killed, and four months after that the wife gave birth to a child, can a child inherit from the father?
Yes, as long as it can be established that the child was conceived while the father was alive, he can take as if he was born before the father died.
If a child was post-humously conceived, how does inheritance work?
If sperm or eggs were preserved and then used after a death to cause a pregnancy, that child can take as if he was born during the lifetime of the decedent if:
– the child can establish by clear and convincing evidence that there was a signed and dated writing by the decedent that gave the other parent permission to use his or her genetic material, and
– if the child was in utero within two years of the decedent’s death
How does surrogacy work with regard to inheritance?
If one woman gives birth to a child with intent to turn the child over to others who will raise it as their own, this is treated as a contract issue and the intent of the parties controls. The surrogate then has no parental relationship with the child unless no one else does.
If a woman is artificially inseminated with the sperm of a donor that is not her husband, how does inheritance work for the child?
The husband is deemed to be the child’s father if he consents to the insemination. Any kids that are produced by assisted reproductive technologies are treated as part of the family of the parents who treat the child as their own.
What is needed in order for a child that was received into a man’s home to be considered the child of that man?
The man must have openly held out the child as his natural child, he must’ve consented in some way and functioned as the child’s parent within two years of the child’s birth, etc.
