Adoption Series Part 5: Can an Adoptee Challenge the Legality of Her Own Adoption in Order to Inherit from Her Biological Parent?

Father and Daughter

Adding to the unusual cases profiled in our Adoption Series (see here, herehere, and here), a Florida court recently decided whether an adopted daughter’s attempt to invalidate her own adoption, so that she could inherit her biological father’s estate as his lineal heir, had any legal merit.

In Kemp & Associates, Inc. v. Chisholm, Lisa Chisholm was born out of wedlock and given up for adoption by her mother in 1961. Although the name and address of the father were known to the adoption agency, he was given no notice of Lisa’s birth nor of her subsequent adoption. At that time, a biological father was not legally entitled to notification of his child’s birth, nor required to be given an opportunity to consent to an adoption. In 1972, however, the U.S. Supreme Court established that a biological father had a Constitutional due process right to both.

Later in life, Lisa found her biological father and established a good relationship with him prior to his death. He died without a surviving spouse or other children. In Kemp, Ms. Chisholm sought to persuade the court that the 1972 ruling applied retroactively. Accordingly, because Lisa’s father was not notified of her birth or adoption in 1961, Lisa argued that his Constitutional rights had been violated and, consequently, that her adoption was invalid. If her adoption were invalid, then Lisa remained the legal heir of her father’s estate.

Ms. Chisholm’s argument was rejected for both Constitutional and public policy reasons. To retroactively apply the Constitutional right would mean that all similar pre-1972 adoptions (where no notice was required nor given to the father) would be invalid in Florida. The Kemp court saw the far-reaching implications of its decision and emphasized Florida’s compelling interest in preventing the disruption of adoptive placements reasoning: “[I]f a 1961 Texas adoption is not entitled to recognition in Florida, then [millions of] adoption[s] [from] other states that did not require notice to putative fathers at the time of the child’s adoption would also be of questionable validity. This would lead to increased litigation and disruptions to many families, both adoptive and biological.”

As seen in Kemp, novel adoption issues continue to arise whenever money is at stake. Adoptions can have very profound effects on estate plans if not properly addressed. For more information on how adoption might affect your estate plan, we encourage you to attend one of our monthly educational workshops.

 

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