Also, does anyone know how much money is riding on this? I’m guessing it’s massively big bucks.
Wouldn’t this depend on the state law governing the hypothetical divorce, the terms of the divorce decree, and the terms of the trust? I don’t see where you have enough information to draw this conclusion.
Just one final point to throw out, since Bricker has demolished what I had to say previously – exactly how relevant to the adoption issue is is that two adults were or were not sexually involved? Take the principle enunciated in Lawrence v. Texas, which sounds to me like it translates to, in laymanspeak, “What two adults do in private by mutual agreement is their private business and not that of the state.”
I suppose the key thing is the exact wording of the Watson Trust.
It looks as if Ms Watson preferred her pal Ms Spado to have her share of the ‘Watson Cash Pool’ to having it enriching her other relatives - and that makes perfect sense.
This is not exactly about ‘inheritance’ it is more about interpretation of the rules of a trust fund, and those can be pretty arbitrary.
As an amusing aside, in the UK, when same sex marriages turned up, there was a great deal of interest from elderly single women who quite liked the idea of pooling their assets to avoid 40% (marginal rate) going to the government.
If the adoption was fraudulent, then I fully support severing the inheritance. If it is a legal adoption, with no misrepresentation, then I think it should be treated just like any other adoption.
Bricker, I’d like to point out that an opposite sex couple had the exact same right to adopt as this couple had. The fact that they had additional options such as marriage is irrelevant, nobody denied them the ability to adopt.
Without going back to the links provided, I’d say you’re right ($500,000 separation payoff, e.g.), but you’d be surprised just how small an estate can be and still have whole flocks of family vultures tearing at the corpus.
As far as I know, that trust details are not known outside of the family. Could be wrong on that though…
Well, but two people having sex doesn’t involve a gov’t recognized legal relationship. I think the language in Lawrence indicating that it didn’t apply to marriages would indicate that there is no application to adoptions as well.
Massachusetts’ adoption laws are contained in its General Laws and Acts Chapter 210, two relevant portions of which are:
G.L. c.210, §1 Nature of adoption; district or juvenile court
Section 1. A person of full age may petition the probate court in the county where he resides for leave to adopt as his child another person younger than himself, unless such other person is his or her wife or husband, or brother, sister, uncle or aunt, of the whole or half blood. A minor may likewise petition, or join in the petition of his or her wife or husband, for the adoption of a natural child of one of the parties. If the petitioner has a husband or wife living, competent to join in the petition, such husband or wife shall join therein, and upon adoption the child shall in law be the child of both; provided, however, that the prayer of the petition may be granted although the spouse of the petitioner is not a party to the petition if the court finds: (i) the failure of the spouse to join in the petition or to consent to the adoption is excused by reason of prolonged unexplained absence, legal separation, incapacity or circumstances constituting an unreasonable withholding of consent; (ii) the husband and wife are not in the process of an ongoing divorce; and (iii) the granting of the petition is in the best interests of the child. If a person not an inhabitant of this commonwealth desires to adopt a child residing here, the petition may be made to the probate court in the county where the child resides.
The district or juvenile court may, if it appears necessary or convenient, exercise the powers authorized by this chapter, but only in respect to a pending proceeding before such district or juvenile court.
G.L. c.210, §7 Succession to property; rights of adopted child
Section 7. A person adopted in accordance with this chapter shall take the same share of that property which the adopting parent could dispose of by will as he would have taken if born to such parent in lawful wedlock, and he shall stand to the kindred of such adopting parent in the same position as if so born to him. If the person adopted dies intestate, his property shall be distributed according to chapters one hundred and ninety and one hundred and ninety-six among the persons who would have been his kindred if he had been born to his adopting parent in lawful wedlock. The apportionment and distribution shall be ascertained by the court. A person shall by adoption lose his right to inherit from his natural parents or kindred, except when one of the natural parents of a minor child has died and the surviving parent has remarried subsequent to such parent's death, subsequent adoption of such child by the person with whom such remarriage is contracted shall not affect the rights of such child to inherit from or through the deceased parent or kindred thereof. The court may decree that the rights of succession to property under this section shall vest in the person adopted as of the date of the filing of the petition for adoption.
I’d link to it but these are from a paid law library service which I cannot give outside links to. Sorry.
I’m not sure I agree with your effort to distill the principle of Lawrence v. Texas or its application here. Lawrence specifically disavows its own application to marriage laws, and marriage laws remove the “privacy of adults” aspect of things. When you seek the state’s involvement, as in the legal recognition of marriage, you are no longer discussing private interactions of consenting adults.
The same objection applies to adoption, which seeks state involvement in the legal recognition of a relationship. Whatever other arguments may be brought to bear here, I think Lawrence is not a case that may be described as “on point.”
That bolded part pretty much clinches the “no inheritance for you!” stance, huh? I fail to see why the discussion continues, based on that. It was an illegal adoption from the start.
Had their ages been reversed, however, it looks to me like it would be a legit adoption.
However, since someone said the adoption actually occurred in Maine, does this law have any bearing on the case?
- Marriage has absolutely zilch to do with it. Mmes. Watson and Spado did not purport to be married, legally or de facto. You are the one who is raising marriage as an issue here (other than my noting in passing that it was not an option available to them). I’m not sure whether, in the calculus of fallacies, it constitutes a straw man or a red herring (and the visual imagery of a cross of the two is not appealing! ;)), but if we can dispose of the question of marriage by acknowledging that nobody is claiming it was one, nobody is purporting to regard it as one, etc. They used the device of adoption to establish a legal relationship, not that of marriage. It is possible under whatever law should prevail (New York, Connecticut, Maine) that it was not a valid adoption. But adoption, valid or nay, != marriage. Even if the participants are inducing orgasms in each other at any possible opportunity.
In Lawrence, Mr. Justice Kennedy, carefully restricting his stance to not apply to minors, those easily injured or coerced, those unable easily to refuse consent, public conduct, or prostitution, identified a right of adults to enter into relationships in their private lives that was not subject to govenment regulation. (Regardless of what you or I may think about the due process implications of that holding, it is presently the law of the land.) My question was simply whether the protected choice of two adults whether or not to engage in sex would enter into whether they might create a legally-recognized relationship between themselves by the mode of one adopting the other – noting carefully that we are discussing adult adoption here. What interest the court might take into the purposes for which Michael Jackson might hypothetically seek to adopt a homeless 12-year-old boy is not relevant to the issue above. I suspect that the issue that they are seeking to establish a legal relationship equivalent to parent and adult child while conducting a sexual relationship might well have a bearing – but I’m wondering if Lawrence’s creation of an autonomous sphere of private relationships might have a bearing on the legality of that inquiry.
Would indeed be interesting to see the trust details–2 questions:
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The most common way to pass assets at death is “through” the first generation children, “per stirpes,” meaning that each first generation child takes an equal share and the number of grandkids doesn’t matter–Watson and/or her kids would take that share whether she had 0, 1 or 12 kids, and no other beneficiary (outside her line) would get any less if she adopted kids. Clearly the trust is NOT written this way, but seems to give the grandkids’ generation payouts on a “per capita” basis. Given this, I would have expected to see more specific trust terms on who could take. In per stirpes, the parent has a higher level of control over who takes because he controls who can become a first generation “child.” This level of control does not exist at the second generation. There are also often provisions barring “alienation” of trust assets (usually designed to prevent spendthrifts from mortgaging their future inheritances) that could be triggered by an adult adoption. This type of provision also seems not to be in play.
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In estates of enormous size, the most tax-efficient way to pass assets through a generation-skip is through trusts. Usually a trust is formed for each beneficiary before assets pass to them and gets named specifically in the grants. Again, this must not be the case here as they apparently tried to provide for grandchildren born after the date of the original trust. One wonders though whether provision is being made for grandkids still unborn–there will be a cut-off at some point.
Also re Mass. adoption law–not relevant–the link cites a lawyer involved in the MA gay marriage law, but the adoption was in Maine.
Which is probably why they did the adoption in Maine. The question then becomes “does Maine allow non-residents to use its court system to adopt.” I’m can’t jump to the assumption they wouldn’t - I know lots of adopted children who went through no U.S. adoption process - their adoption was completed in their country of origin - and their parents were not residents. If the adoption was done fraudulantly, then it didn’t happen.
And it does open up interesting questions on incest laws…
While I couldn’t find a quick answer to Dangerosa’s query Maine’s adoption statutes say in what I hope are the pertinent parts:
M.R.S. 18-A, §9-102. Definitions
As used in this article, unless the context otherwise indicates, the following terms have the following meanings.
(a) “Adoptee” means a person who will be or who has been adopted, regardless of whether the person is a child or an adult. …
(c) “Adult” means a person who is 18 years of age or older.
(d) “Child” means a person who is under 18 years of age.
(e) “Consent,” used as a noun, means a voluntary agreement to an adoption by a specific petitioner that is executed by a parent or custodian of the adoptee…
(h) “Parent” means the legal parent or the legal guardian when no legal parent exists.
(i) “Petitioner” means a person filing a petition to adopt an adult or child, and includes both petitioners under a joint petition, except as otherwise provided. …
(k) “Surrender and release,” used as a noun, means a voluntary relinquishment of all parental rights to a child to the department or a licensed child-placing agency for the purpose of placement for adoption.
M.R.S. 18-A, §9-301. Petition for adoption and change of name; filing fee
A husband and wife jointly or an unmarried person, resident or nonresident of the State, may petition the Probate Court to adopt a person, regardless of age, and to change that person’s name. The fee for filing the petition is $65 plus
(a) The fee for a national criminal history record check for noncriminal justice purposes set by the Federal Bureau of Investigation for each prospective adoptive parent who is not the biological parent of the child; and
(b) The fee for a state criminal history record check for noncriminal justice purposes established pursuant to Title 25, section 1541, subsection 6 for each prospective adoptive parent who is not the biological parent of the child.
M.R.S. 18-A, §9-303. Petition
(a) A petition for adoption must be sworn to by the petitioner and must include:
(1) The full name, age and place of residence of the petitioner and, if married, the place and date of marriage;
(2) The date and place of birth of the adoptee, if known;
(3) The birth name of the adoptee, any other names by which the adoptee has been known and the adoptee's proposed new name, if any;
(4) The residence of the adoptee at the time of the filing of the petition;
(5) The petitioner's intention to establish a parent and child relationship between the petitioner and the adoptee and a statement that the petitioner is a fit and proper person able to care and provide for the adoptee's welfare;
(6) The names and addresses of all persons or agencies known to the petitioner that affect the custody, visitation or access to the adoptee;
(7) The relationship, if any, of the petitioner to the adoptee;
(8) The names and addresses of the department and the licensed child-placing agency, if any; and
(9) The names and addresses of all persons known to the petitioner at the time of filing from whom consent to the adoption is required.
(b) A petitioner shall indicate to the court what information the petitioner is willing to share with the biological parents and under what circumstances and shall provide a mechanism for updating that information. ...
M.R.S. 18-A, §9-302. Consent for adoption
(a) Before an adoption is granted, written consent to the adoption must be given by:
(1) The adoptee, if the adoptee is 14 years of age or older;
(2) Each of the adoptee's living parents, except as provided in subsection (b); ...
A petition for adoption must be pending before a consent is executed.
(b) Consent to adoption is not required of:
(1) A putative father or a legal father who is not the biological father if he:
(i) Received notice and failed to respond to the notice within the prescribed time period;
(ii) Waived his right to notice under section 9-201, subsection (c);
(iii) Failed to meet the standards of section 9-201, subsection (i); or
(iv) Holds no parental rights regarding the adoptee under the laws of the foreign jurisdiction in which the adoptee was born;
(2) A parent whose parental rights have been terminated under Title 22, chapter 1071, subchapter VI;
(3) A parent who has executed a surrender and release pursuant to section 9-202;
(4) A parent whose parental rights have been voluntarily or judicially terminated and transferred to a public agency or a duly licensed private agency pursuant to the laws of another state or country; or
(5) The parent of an adoptee who is 18 years of age or older
M.R.S. 18-A, §9-105. Rights of adopted persons
Except as otherwise provided by law, an adopted person has all the same rights, including inheritance rights, that a child born to the adoptive parents would have. An adoptee also retains the right to inherit from the adoptee’s biological parents if the adoption decree so provides, as specified in section 2-109, subsection (1).
M.R.S. 18-A, §9-315. Annulment of the adoption decree
(a) A judge of probate may, on petition of 2 or more persons and after notice and hearing, reverse and annul a decree of the Probate Court for one of the following reasons.
(1) The court finds that the adoption was obtained as a result of fraud, duress or illegal procedures.
(2) The court finds other good cause shown consistent with the best interest of the child.
(b) Notice of a petition to annul must be given to the biological parents, except those whose parental rights were terminated through a proceeding pursuant to Title 22, section 4055, subsection 1, paragraph B, subparagraph (2), and to all parties to the adoption including the adoptive parents, an adoptee who is 14 years of age or older and the agency involved in the adoption.
(c) After the Probate Court annuls a decree of adoption, the register of probate shall transmit immediately a certified copy of the annulment to the State Registrar of Vital Statistics.
M.R.S. 18-A, §2-109. Meaning of child and related terms
If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:
(1) An adopted person is the child of an adopting parent and not of the natural parents except that an adopted child inherits from the natural parents and their respective kin if the adoption decree so provides, and except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and either natural parent. If a natural parent wishes an adopted child to inherit from the natural parents and their respective kin, the adoption decree must provide for that status;
(2) In cases not covered by paragraph (1), a person born out of wedlock is a child of the mother; that person is also a child of the father if:
(i) The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or
(ii) The father adopts the child into his family; or
(iii) The father acknowledges in writing before a notary public that he is the father of the child, or the paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof, but the paternity established under this subparagraph is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his and has not refused to support the child.
(3) A divorce or judicial separation does not bar the issue of the marriage from inheriting.
RAP !!
Assuming that the sexual relationship continued after the adoption, could they be prosecuted for incest?
Incest isn’t illegal, though. If two adults want to have sex, why should it matter how they’re related?
sigh
What a surprise. You must drop a line to the legislature of virtualy every state and let them know they are hopelessly confused.
In Virginia, for example, Va. Code § 18.2-366 provides in pertinent part:
In fact, incest between adults is illegal almost everywhere in the US.
Probably not, at the present time. Remember that the couple broke up in 1992, insofar as being a romantic/sexual pair went – though if the information here is to be believed, there was no intent to terminate the adoption.
One would no doubt have to research this out, and determine (a) whether the adoption would be recognized in their state(s) of residence (NY, CT??), and (b) what the statute of limitations on incest would be in that state/those states. But some research I did a couple years back on child sexual abuse seems to indicate that the “normal” statute of limitations would have been seven years, but that there was a model law of sorts being adopted by several states that changed that to seven years from the date of majority, i.e., until the 28th birthday of the minor child (or of course the last date of incest if it fell later).
So if (a) the adoption is recognized, and (b) the states in question are using the usual statue of limitations, then it would have expired, there having been about 15 years since the last sexual activity, and if the adoption is not recognized, then it does not constitute incest. Only if there’s an abnormally long statute of limitations in place and someone wanting to make an issue of it does the question become relevant.
By the way, from the looks of the Maine statutes cited above, it appears that if there was no attempt to perpetrate fraud on the court, and nobody wants to advance the claim that the lesbian relationship made Ms. Watson not a fit and proper person to adopt, then the adoption would appear legal under the Maine law cited. (One assumes that there is no provision omitted elsewhere in the Maine statutes that mandates that the parties to the adoption must have legal residence in Maine – which is not mandated by the law as cited above.)