Does an Adoption REALLY mean an Adoption for Inheritance Purposes?
Under Section 63.172 and Section 732.108 of the Florida statutes, if a biological child is adopted away from a biological father, and the child’s biological father dies without a will (intestate), then the child will not inherit because the child is considered a child of the adoptive parents. But what happens if the adoption takes place in another state?
In a recent case, Kemp & Associates, Inc. v. Lisa Chisholm, argued and won on appeal by Pinellas County and Clearwater’s own Richard Pearse, Esquire, the court addressed this question.
A short summary of the facts will help.
1. In 1960, JKT and Mr. T had a romance.
2. JKT found out she was pregnant after she and Mr. T broke up.
3. Mr. T never knew about the pregnancy.
4. In 1961, the baby was adopted in Texas by the Chisholm family and named Lisa Lou Chisholm.
5. Lisa searched for her father and found Mr. T in 1997.
6. Lisa and her father pursued a father-daughter relationship and Mr. T acknowledged Lisa as his biological daughter.
7. Mr. T died in 2010 in Florida with no will and survived only by his biological daughter, but no siblings, no spouse and no parents.
8. Kemp & Associates, an heir search firm, found Mr. T’s long lost cousins and argued they were the ONLY intestate heirs of Mr. T. because Lisa was adopted away from Mr. T and Lisa should not inherit from Mr. T under Florida law.
9. Lisa argued that the adoption in Texas was invalid because Mr. T never received notice of the adoption. Since Mr. T never received notice he was denied due process and thus the Texas adoption was invalid.
The lower court agreed with Lisa and determined that she would inherit from Mr. T. Kemp & Associates then appealed.
The appellate court determined that, under Texas law in 1961, the father was never required to receive notice because an adoption was valid if only the mother consented. Further, fighting this adoption 50 years later would “overturn the permanency and stability of an adoption finalized almost half a century ago.” The court also went through the history of adoption cases and determined that the Texas adoption was valid and therefore, Lisa was NOT an intestate heir and thus, not entitled to a share of Mr. T’s estate.
ADVICE: Moral of the story… If Mr. T and Lisa resumed a father daughter relationship and Mr. T wanted Lisa to inherit (and assuming Mr. T was competent), Mr. T could have easily prepared a will which would have avoided this litigation. If there is an intestate estate, make sure that all the intestate heirs are determined and, if necessary, hire a search firm to make sure that all intestate heirs are found.
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