Adult Adoptions: Can/Should Same-Sex Couples Adopt Each Other?
Adult adoption of ones same-sex partner has been a technique employed by many same-sex couples over the past few decades as a way to receive some of the rights of marriage. The idea is believed to have started with Jack Baker, who was adopted by his partner James McConnell in 1971. In jurisdictions in which same-sex marriage is illegal or not recognized, adult adoption is the only way to create a bona fide legal family relationship, and may be the alternative of choice for some couples.
However, there are some advantages and disadvantages to such a setup that gay and lesbian couples should consider before deciding to adopt. As always, you should consult an attorney who can better assess your individual situation to determine if adult adoption is for you. These tips should be used as a starting point only.
Advantages
- Most states allow it - Unlike same-sex marriage, which is performed in only 5 states in the country, adult adoption of ones same-sex partner is allowed in almost every state. Though Florida bars gay and lesbian individuals from adopting, the remaining 49 states have no such restriction. As you will be adopting your partner as a single person, statutes prohibiting joint same-sex adoption are also inapplicable. Some states, however, may have certain restrictions, such as requiring that the adopter be 10 or more years older than the adoptee, which may create complications.
- You can create a legal family relationship - In addition to the greater feeling of commitment same-sex couples have when entering into a legal relationship, adult adoption also provides some legal perks, particularly for those couples wishing to have children. Since many states bar joint and second-parent adoptions by same-sex couples, adult adoption of your partner may be the only way to ensure that your child has a legal relationship with both of you. This means inheritance, custody, healthcare decision-making, and other parental rights can be shared by both parents (though one partner would technically legally be the child's grandparent).
- You may inherit from each other at death - Though it is possible to draft a will that gives all of your personal property to your partner, wills are sometimes successfully challenged by family members who disagree with your lifestyle or simply desire a greater inheritance. An adult adoption means that both your and your partner's families will not have standing to challenge your will. Additionally, should you die without a will, all of your property will pass automatically through a process called 'intestacy' to your partner. Be warned, though, that family members may still attempt to challenge the legitimacy of your adoption.
- You are legally next-of-kin - Next-of-kin status essentially provides a same-sex couple with all of the rights a durable power of attorney would without the additional legal paperwork. This means that you and your partner will be able to make medical and legal decisions for one another in the event of incapacitation.
- You may share in your partner's benefits - Health insurance policies and employee benefits are often limited only to family members, and an adult adoption may permit you to share these benefits with your partner. Additionally, life insurance policies, which are frequently challenged by the family of the deceased gay or lesbian individual, gain additional protection when the named beneficiary is a legal family member.
Disadvantages
- You may not undo the adoption - Once you or your partner has completed the adult adoption process, there is no way to undo it. There is nothing analogous to a divorce when it comes to adult adoption. For this reason, same-sex couples should be incredibly cautious before entering an adoption agreement, as there is no way to legally sever your relationship.
- Even if technically permitted, a court may still deny your application - One case in particular, In re the Adoption of Robert Paul P., 471 N.E.2d 424 (1984), denied the petition of a 57-year-old man to adopt his 50-year-old partner. The New York Court of Appeals viewed the adoption application as a way to circumvent anti-gay marriage laws and denied permission to adopt on public policy grounds. However, other courts have permitted such adoptions, and so it is impossible to predict the outcome of your particular petition. As your adoption will be respected nationwide, most couples elect to apply in California, which has been fairly liberal with the approval of adult adoptions between same-sex partners.
- The adoptee loses inheritance rights with his or her natural parents - In many jurisdictions, adoption legally severs the adoptee from his or her former parents. This means that the individual is no longer able to inherit from their natural parents unless there is a will explicitly providing for them. Typically this problem is solved by choosing as the adopter the individual whose parents have already died or who stands to inherit the most in the event of death.
- You may be prosecuted for incest - Though no same-sex couple who has opted for adult adoption has been prosecuted for incest to my knowledge, many states' laws criminalizing incest will apply to you. It is unclear how the law will apply — it is even possible that the Court would invalidate incest laws under a Lawrence v. Texas precedent — but this is a consideration that must be made.
- Your options for marriage may be limited - Again, a case involving this particular scenario has not yet come up, but the same incest laws that prohibit a parent from marrying his or her child would apply to you and your partner. And because adoptions are irrevocable, it may never be possible for you to legally wed your partner unless you can successfully challenge the law in court.
Ultimately, the decision to file for an adult adoption of your same-sex partner is an intensely personal one. This avenue to rights is not appropriate for everyone, but may be suitable in certain cases. If you believe an adult adoption might be right for you an your partner, you should consult an attorney who can better advise you as to the advantages and disadvantages given your particular situation.
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