Adoption is a two-edged sword. One may be adopted into a new family, but the result of that circumstance is that one may be adopted out of another. Here is an example.
My clients were grandparents. Their daughter and her husband had two children, two boys, and their son and his wife had one child, a little girl whose name was Mary. The estate plan of the grandparents appeared to be simple and straightforward: at the first death, all to the surviving spouse and, at the second, to the children in equal shares, per stirpes . In this case “per stirpes” would mean that if the son predeceased his parents, then his child, Mary, the sole granddaughter, would have received the share the son would have received had he survived his parents.
But an unfortunate thing happened in this family. The son and his wife divorced, and the son moved away, leaving Mary with her mother. Mother and daughter lived near my clients. My clients were supportive of their former daughter-in-law, who worked outside her home, and they helped her with Mary, taking care of her when mother was at work, being there on the weekends, during school holidays and other special events. The relationship between my clients, their granddaughter, and her mother remained very close.
After a time, the former daughter-in-law married someone else, a man who also lived in their community. The marriage worked well, the son remained far away, and the step-father after several years said he would like to adopt the little girl. The son consented to that adoption, and it happened.
But the “simple and straightforward” estate plan of my clients no longer worked. The relationship between Mary and her grandparents depended upon her being the daughter of her natural father. Under Florida law, Mary was no longer in the line of descent from my clients. Thus, under my clients’ Wills, Mary would receive nothing, even if her natural father died before her grandparents did. When one is adopted into a new family, the general rule is that one is adopted out of one’s old family. My clients no longer had a granddaughter under the law.
The fix was simple. Knowing that a “significant life event” could affect their estate planning, the grandparents paid me a visit after the son and his wife divorced. I warned them about what would happen if Mary’s mother remarried and the step-father adopted Mary. We created new Wills, very similar to their old ones except in one respect. Each of the new Wills said: “Our granddaughter Mary shall be considered for all purposes and forever as the child of my son and our granddaughter, even though a step-father may adopt her. Her descendants, therefore, shall also be considered our descendants.”
Florida has an important exception to the general rule. If the marriage between the son of my clients and their daughter-in-law had ended because the son died, then the subsequent remarriage of the daughter-in-law and the adoption of Mary by the widow’s new husband would not have resulted in Mary being adopted away from my clients. She would have remained their granddaughter in the eyes of the law and her descendants the descendants of my clients. The old Wills would have worked just as my clients intended.
The moral of this story is not that grandparents should post a copy of this blog post on their refrigerator if a child’s marriage should get rocky. The moral is that if there is a “significant life event,” then call the lawyer, whatever that event might be.