When a decedent with children leaves no will at the time of death (known as dying intestate), the children of decedent will generally inherit the estate. The Texas Estates Code specifies that a child includes an adopted child, whether the adoption occurred through formal proceedings or an equitable adoption. Tex. Est. Code Ann. § 22.004 (West).
Texas courts have recognized adoption by estoppel (also known as equitable adoption) since 1934. See, e.g., Cubley v. Barbee, 73 S.W.2d 72, 83 (Tex. 1934). To prove adoption by estoppel in Texas, a person must show (1) the existence of an agreement by the parent to adopt the child and (2) “performance” by the child. Dampier v. Williams, 493 S.W.3d 118, 122 (Tex. App. 2016).
Performance is the most basic of the two elements and is usually satisfied by love and affection and rendering of services. For example, children may create birthday cards for their parents or perform routine chores like mowing the yard.
The existence of an agreement is often the more difficult task in proving equitable adoption. In absence of the parent attempting to comply with a formal or statutory process, the child must prove an agreement with the child’s natural parents or some other person in loco parentis. Lowrey v. Botello, 473 S.W.2d 239, 240–42 (Tex.Civ.App.–San Antonio 1971, no writ). Additionally, an agreement to adopt can be verbal. Dampier, 493 S.W.3d at 122.
It is common for a grandparent or stepmom or stepdad to support a child by providing food, a home, clothes, and even paying for a child’s education. While these types of financial support are all things a natural parent would typically do, they are not enough to prove adoption by estoppel. To prevail, a child must show an actual agreement or understanding by the parent with a natural parent or someone acting in the natural parent’s place to adopt the child. Jan Ellen Rein, The Winds of Change in Wills, Trusts, and Estate Planning Law; Relatives Adoption, and Association: Who Should Get What and Why (The Class Gifts), 37 Vand. L. Rev. 711, 775 (1984).
Some factors that courts have said indicate an agreement to adopt include a child calling the adoptive parent mom or dad, use of the adoptive parent’s name on formal records at school, and the adoptive parent claiming the child as a dependent on tax forms.
Adoption by estoppel in Texas or equitable adoption is a complex area of law. An experienced probate attorney should be consulted before making or defending an equitable adoption claim.
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