Adopting an Adult and Why It Is Done
Adult adoption is the shortest proceeding in this area of law. The consent of the person being adopted is usually the only one required, and the consequences that motivate it are mostly about inheritance, benefits and names.
The rule in short
Statutes generally allow any adult to be adopted by another adult, on the consent of the person being adopted and often the spouse of each party. Home studies, termination of parental rights and placement supervision do not apply. Some states impose an age difference or a prior relationship requirement, and several restrict adoption of a vulnerable adult or one subject to a guardianship. The decree changes inheritance rights and, in most states, permits a name change.
Adult adoption is the same word attached to a very different proceeding. Nobody's rights are terminated, no agency is involved, no study is prepared, and the hearing is often measured in minutes. The requirements are correspondingly narrow, and so is the room to undo it afterward.
Who may adopt and be adopted
Statutes usually begin with a broad statement. Any person may be adopted, regardless of age or residence, and any legally competent adult may adopt. Minnesota provides that any adult may be adopted regardless of residence, and that a resident may petition the court with adoption jurisdiction to adopt someone eighteen or older.
The restrictions are added on top. California requires the adopting adult to be older than the adoptee and excludes the adopting party's spouse from being adopted. Some states impose a minimum age difference, commonly ten years, sometimes with an exception for a stepparent or a relative. A few require that the parties have had a relationship for a stated period before filing.
Capacity restrictions have become more common. Minnesota provides that an adult's consent to that adult's own adoption is invalid if the adult is a vulnerable adult under the state's definition, or if the person consenting is determined not competent to give consent. Provisions of this kind exist because the proceeding is otherwise easy enough to be used against someone who cannot object.
The consents required
The defining simplification is that the adoptee's own consent is generally the only consent the statute requires. There is no consent from the birth parents, because their legal authority ended when the adoptee reached majority.
Spousal consent is the common addition. Many states require the consent of the adopting party's spouse and of the adoptee's spouse, on the ground that the adoption alters inheritance and support expectations within both marriages. Some allow the requirement to be excused where the spouses are separated or a spouse cannot be located.
Several states structure the whole matter as an agreement rather than a petition against anyone. California requires a written adoption agreement executed by the prospective adoptive parent and the proposed adoptee, stating that the parties agree to assume toward each other the legal relationship of parent and child with all the rights and duties of that relationship, and approved by the court.
| Element | Minor adoption | Adult adoption |
|---|---|---|
| Consent of birth parents | Required or their rights terminated | Not required in most states |
| Home study | Required unless waived | Not required |
| Placement and supervision | Required in agency cases | Not applicable |
| Consent of the person adopted | Required above a statutory age | Always required |
| Spousal consent | Joint petition or consent of the petitioner's spouse | Commonly required for both parties |
| Interstate compact clearance | Required for a covered placement | Not applicable |
| Typical time to decree | Months | Weeks |
The decree makes the adoptee an heir of the adopting parent. In most states it simultaneously ends the adoptee's status as an heir of the birth parents, so an adult adopted by a stepparent may lose intestate rights in a birth parent's estate without anyone raising it at the hearing. Where a birth parent intends the adoptee to inherit, the answer is an express provision in a will or trust rather than reliance on the default rules.
Why people do it
The most common reason is confirmation. A stepparent who raised the person, a relative who took the person in, or a long-term foster parent whose case ended at majority formalizes a relationship that already exists. The decree provides a legal document reflecting what the family regards as true.
Inheritance planning is the second reason. Adoption places the adoptee within the class of children for purposes of intestate succession and, depending on the instrument and the state, within class gifts to children or issue in an existing will or trust. That second effect is much less certain than the first, and courts have refused to include adult adoptees in class gifts where the adoption appeared designed to capture a benefit under someone else's document.
Benefit and status questions supply the third. Some pension and survivor benefit rules recognize an adopted adult child; others do not. Immigration law generally requires an adoption to have occurred before a specified age, so an adult adoption does not create the relationship those provisions require. Name change is a fourth and simpler motivation, and many statutes allow the decree to change the adoptee's name on request.
Where courts decline
Statutes and courts push back in recognizable situations. Adoption of a spouse is barred outright in many states. Adoption of a romantic partner has been refused where the purpose was to create inheritance rights that a different instrument could supply.
Petitions involving an adult who cannot understand the proceeding attract scrutiny, and several states now void the consent in that circumstance. Where the adult is subject to a guardianship, the arrangement raises questions the guardianship court is better placed to address, including whether the appointment should have been narrowed or ended, which are the subjects of tailoring the order to the areas where ability is lacking and the route to restoring rights.
Courts also decline where the petition appears aimed at a creditor, a benefit program or a court in another proceeding. Some statutes require the petition to state the purpose of the adoption for exactly this reason.
What the proceeding looks like
A petition is filed in the court with adoption jurisdiction where a party resides. It attaches the consents or the adoption agreement, identifies the parties, and states any facts the statute requires such as the age difference or the relationship. Filing fees are modest and background checks are usually not required.
The hearing is generally short and may be held in chambers. The court confirms that the consents are voluntary, that the statutory conditions are met, and that no restriction applies. A decree issues, and in most states the record is treated with the same confidentiality applied to other adoption records.
Undoing an adult adoption is difficult. Statutes provide almost no mechanism for vacating a decree once entered, and the grounds that exist are the ordinary ones for setting aside a judgment: fraud, duress, lack of capacity or a defect in jurisdiction. Several states set a short outer limit on any challenge. Parties who treat the proceeding as reversible because it was quick have the position exactly backward.
An amended birth record may be available, though several states limit that to adoptions completed before a certain age. Adoption of an adult also lies outside every mechanism built for children's cases: no compact clearance under the sequence in interstate placement approval, no consent period of the kind described in the revocation window, and none of the simplifications and residual requirements set out in stepparent and relative adoption.
Points to carry away
- The consent of the adult being adopted is generally the only consent the statute requires.
- No home study, placement supervision or termination of parental rights is involved.
- Several states require the consent of the spouse of the adopting party, of the adoptee, or both.
- Some states impose a minimum age difference or require a pre-existing relationship.
- Statutes commonly bar adoption of a spouse and restrict adoption of an adult who cannot consent.
- The decree makes the adoptee an heir of the adopting parent and generally severs inheritance from the birth family.
Questions readers ask
Do the adoptee's birth parents receive notice?
Usually not. Because the adoptee is an adult and no one's parental rights are being terminated in the sense that matters to a minor's case, most statutes do not require notice to the birth parents. A minority of states require notice or allow the court to order it. The absence of a notice requirement is one reason the proceeding is quick, and it is also why the effect on inheritance from the birth family catches families by surprise afterward.
Can an adult adoption be used to obtain a benefit?
Courts scrutinize petitions where the purpose appears to be securing an inheritance under someone else's instrument, qualifying for a pension, or altering immigration eligibility. Some states require the petition to state the purpose. Several trust and estate decisions have refused to treat an adult adoptee as included in a class gift where the adoption appeared designed to capture it, and immigration law generally does not treat an adult adoption as creating the relationship its provisions require.
Does an adult adoption affect the adoptee's existing children?
Generally the adoptee's own children are unaffected as to their relationship with the adoptee. Their relationship to the new adoptive grandparent depends on the state's intestacy and class gift rules, which vary. Where the intention is to include the next generation in an inheritance plan, relying on the adoption to accomplish it is unreliable, and the more dependable route is an express provision in a will or trust naming the individuals concerned.
Sources
- California Family Code § 9320, Adoption of adults; adoption agreementPermits an adult to adopt a younger adult, other than a spouse, by an approved written agreement.
- Revised Code of Washington § 26.33.140, Who may adopt or be adoptedProvides that any person may be adopted regardless of age or residence.
- Revised Code of Washington § 26.33.220, Preplacement and post-placement reports — When not requiredRemoves the report requirements where the adoptee is eighteen or older.
- Minnesota Statutes § 259.241, Adult adoptionMakes the adoptee's consent the only consent required and voids consent by a vulnerable adult.
- Florida Statutes § 63.042, Who may be adopted; who may adoptStates that a minor or an adult may be adopted and identifies who may petition.
- Child Welfare Information Gateway, Who May Adopt, Be Adopted, or Place a Child for AdoptionFederal clearinghouse summary of state eligibility rules, including adult adoption.
Metro Law Advisors is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Adoption & Reproduction
Getting a Parentage Order Entered Before Birth
In states with an enabling framework, a party to a surrogacy agreement may seek an order declaring each intended parent to be a parent, declaring the person who gave birth and any spouse not to be parents, and directing the registrar to record the intended parents on the birth record. The court may issue the order before birth and stay enforcement until delivery. Other states enter an order only after birth, sometimes on an expedited timetable measured in days.
The Revocation Window After Consent Is Signed
Consent statutes set a minimum interval after birth before a birth parent may sign, then a revocation period measured either in days or by reference to court approval. Some states make consent binding on execution for a newborn and allow only fraud or duress as a later challenge. Others allow a fixed number of days, or a waiver of the right to revoke signed with counsel. Federal law adds a separate rule where the child is an Indian child.
The Putative Father Registry and the Deadline Running Against It
Most states maintain a registry where a man who believes he may have fathered a child files identifying information to preserve a right to notice of an adoption or termination proceeding. Registration does not establish paternity and confers no custody. Deadlines are short, commonly measured from the child's birth or from the filing of a petition. A certificate that a search found no filing lets a court proceed without notice to any unregistered man.