How Do I Love Thee, Let Me Count the Days Deathbed Marriages in

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How Do I Love Thee, Let Me Count the Days Deathbed Marriages in ...


    1Terry L. Turnipseed

     (ĭn'sěst') Sexual relations between family members or close relatives, in?cest

    2including children related by adoption.


    HERE is a growing trend in this country startling to many of adopting ones adult T lover or spouse for various reasons, mostly inheritance-based. Should one who adopts

    his or her adult lover or spouse be prosecuted for incest? Think about it: the person is

    3having sexual relations with his or her legal child. Is that not incest? Even if a state agrees

    4that it is, will Lawrence v. Texas now protect this behavior, preventing these people from

    being successfully prosecuted for this type of incest? Indeed, given its prevalence in

    modern society, will this be the first post-Lawrence individual sexual privacy rights case to

    which the Court will grant a writ of certiorari?

    5 In no less than four instances, Justice Scalia in Lawrence warned that adult incest can

    6no longer be outlawed by state or federal governments: with the decision in Lawrence,

1Associate Professor of Law, Syracuse University College of Law. The author received a J.D. and an LL.M. in Taxation at the Georgetown University Law Center, two Master of Science degrees at the Massachusetts Institute of Technology, and a Bachelor of Science degree at Mississippi State University. The author wishes to thank his wife, Lydia Arnold Turnipseed, Esq., Dr. Keith J. Bybee of the Maxwell School of Citizenship and Public Affairs and the College of Law at Syracuse University, and The Honorable Morris Sheppard Arnold of the U.S. Court of Appeals for the Eighth Circuit all of whom provided valuable editorial assistance in the preparation of this Article. Finally, the author could not have completed this Article without an incredible team of research assistants over the last year, including Lee Miller and Ryan Tougias.

    2LACKS AW ICTIONARYLD 776 (8th ed. 2004) (emphasis added). B

    3 See infra Part IV, for a discussion of the possibility of federal prosecution under the Mann Act, 19 U.S.C. ? 2421, but since the Mann Act relies on state law to determine whether a particular behavior is a sexual crime and thus within the purview of the federal Mann Act, this article will primarily discuss this issue from the viewpoint of state law as restricted by the federal constitution. 4 Lawrence v. Texas, 539 U.S. 558, 561 (2003).

    5 Note that when I talk about incest in this Article, I am discussing sexual relations between a parent and a consenting adult child. This Article does not address sexual relations, whether consensual or not, between a parent and a minor child, or between a parent and unwilling adult child. To save space, I may often omit the modifiers adult and consensual. Rape and statutory rape laws generally cover those relationships and, in general, have not been the subject of attack by scholars or the courts.

    6 Lawrence, 539 U.S. at 590. (“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.”); Id. at 598 (“States continue to prosecute all sorts of crimes by adults "in matters pertaining to sex": prostitution, adult incest, adultery, obscenity, and child pornography.”); Id. at 599 (“The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are „immoral and unacceptable,‟ [citing Bowers, at 196] the same interest furthered by

    78 (i.e., Bowers). Others have echoed Justice Scalia‟s Justice Scalia lost his incest repellant

    9sentiments. Since the Court‟s decision in Lawrence, the median viewpoint among legal

    10scholars seems to be that incest is the next battle. It appears that neither Justice Scalia,

    nor legal scholars realize that the parade of horribles with adult adoption of lovers leading the band has already started. It has started with a whimper, though, and not a

    11bang. It has not begun with what is considered “core” incest (sexual relations between biological parents and children or between biological full siblings), but instead with a

    growing set of behavior classified in many states as incest sexual relations between an adult who adopts his or her lover or spouse (a subset of “non-core” incest that also includes sexual relations between distant relatives such as cousins).

     For some time now adults both heterosexual and homosexual have been adopting

    12their lovers and spouses all over the country for various reasons: to better guarantee the

    adoptee‟s right to inherit directly from the adoptor; to keep collateral relatives from having

    standing to contest the adoptor‟s estate plan; or to add a loved one to a class of trust

    13beneficiaries (allowing the adoptee to inherit “through” the adoptor). It appears that, post-Lawrence, both the academy and the judiciary have completely overlooked this

    criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion.”); Id. at 600 (“No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers societys belief that certain forms of sexual behavior are immoral and unacceptable, [citing Bowers at 196]. This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage.”). 7 Sadly, I can only dream of being clever enough to have invented this term. See William Saletan, Incest Repellent? If Gay Sex is Private, Why Isn’t Incest? SLATE, Apr. 23, 2003, (last visited July 10, 2008).

    8Bowers v. Hardwick, 478 U.S. 186, 187 (1986).

    9 Including U.S. Senator Rick Santorum in a statement just before Lawrence was issued: “If the Supreme Court says that you have

    the right to consensual [gay] sex within your home, then you have the right to bigamy, you have the right to incest, you have the right to adultery. You have the right to anything.” Courtney Megan Cahill, Same-Sex Marriage, Slippery Slope Rhetoric, and the Politics of Disgust: a Critical Perspective on Contemporary Family Discourse and the Incest Taboo, 99 W EVN.U.L.R. 1543, 1544 (2005) (citing Associated Press interview with Sen. Rick Santorum (Apr. 7, 2003)). Of course, Senator Santorum and those who espouse his view on this issue have their critics. See, e.g., Id. at 1544 (citing Dahlia Lithwick, Slippery Slop: The Maddening Slippery Slope Argument Against Gay Marriage, SLATE, May 19, 2004) (“Since few opponents of homosexual unions are brave enough to admit that gay weddings just freak them out, they hide behind the claim that it‟s an inexorable slide from legalizing gay marriage to having sex with penguins outside JC Penney‟s. The problem is it‟s virtually impossible to debate against a slippery slope. Before you know it you fall down, break your crown, and Rick Santorum comes tumbling after.”).

    10ARDOZO OMENS See, e.g., Cahill, supra note 9, at 1544 (citing Brett McDonnell, Is Incest Next?, 10 CWL.J. 227, 227 (2004); Cass Sunstein, What Did Lawrence Hold?: Of Autonomy, Desuetude, Sexuality, and Marriage, 2003 SUP T EV.C.R. 27, 48.). 11 What some call “core” incest, others call “nuclear” incest. See, e.g., Carolyn S. Bratt, Incest Statutes and the Fundamental Right of Marriage: Is Oedipus Free to Marry?, 18 FAM .L.Q. 257, 288 (1984) . For consistency, I will stay with the term “core” and “non-core” throughout this article, if only to avoid the term “anti-nuclear” since, as a nuclear engineer by educational background, the latter term still evokes unwanted ire in my subconscious.

    12 This article explicitly does not discuss the important issue of whether homosexual couples have just as much of a right as

    heterosexual couples to adopt children. There is a very large body of existing scholarship on this issue that is legally distinct from the subject matter herein.

    13 See infra Part II.


steadily growing, albeit stealthy, trend.

    14 to include not only sex The definition of incest is broad enough in many states

    between a parent and his or her adult biological child, but also between a parent and his or her adult adopted child. Despite falling squarely under these states‟ definition of incest, there are precious few reported cases of actual prosecutions for incest in adult adoption

    15situations, and no reported cases post-Lawrence.

     I wonder if both sides are scared to go to war? Are they scared to engage fully in a

    prosecution for this type of incest, only to be rebuffed by a Lawrence-based constitutional defense? For the reasons stated later in this article, I think that this particular form of incest

    is the most probable next case in the Lawrence progeny, and that Lawrence will protect this

    16subset of non-core incest likely resulting in the first step down Scalia‟s slippery slope.

     The stakes are extraordinarily high. If a constitutional challenge to a prosecution for

    incest of an adult who adopted a lover were successful, it would likely validate at least

    some, and possibly all, of Justice Scalia‟s anxious Lawrence dissent, and the whole house of sexual-crime cards could well fall with it: not only for this strand of incest laws, but also

    for laws addressing “core” incest, adultery, bestiality, masturbation, fornication, bigamy,

    and possibly ending with the brass ring of same-sex marriage. As one commentator noted,

    “[O]ne of the reasons incest has been such a durable and effective player on the slippery slope is because almost everyone is repulsed by it, regardless of political affiliation. Those

    who are undecided over the issue of same-sex marriage might be easily swayed by the

    17invocation of incest.” Though no one seems to realize it right now, the outcome of this

    upcoming battle might well impact millions of American lives.

14 See infra Part III for a list of states.

    15 See infra Part III.

    16 In recent years, there has been some very important work on the legal theory of slippery slopes, some of it related to Lawrence. See, e.g., Eugene Volokh, Same Sex Marriage and Slippery Slopes, 33 HOFSTRA EVL.R. 1155 (2005). The intricacies of this collective scholarship are beyond the scope of this Article.

    17 Cahill, supra note 9, at 1607-08. To be clear, this article is not about the ability (or inability) of government to prevent same-sex marriage an enormous body of work already exists on that subject. However, the implications of the ability of government to prevent incest are undeniably tied for better or worse, richer or poorer to the same-sex marriage issue.



    [T]aboos do not work rationally but seek to induce reflexive

    18disgust at a prohibited practice.

    1920 In olden times, the notion of adoption was, mostly, to care for orphaned children.

    But it has also served some very important purposes: To provide an heir for the adoptor

    21and/or to perpetuate a family name by a childless individual; to enable a stepparent to

    22adopt a spouse‟s children, whether adult or not; or to adopt an adult who was raised by

    23the adopter (but, for whatever reason, did not get adopted during childhood). In the 20th and 21st centuries, several different and more controversial motives have emerged as

    24well. The two case studies below are illustrative of these more controversial types of

18A EV Milton C. Regan, Jr., Reason, Tradition, and Family Law: A Comment on Social Constructionism, 79 V.L.R. 1515, 1526 (1968).

    19A EV Walter Wadlington, The Adopted Child and Intra-Family Marriage Prohibitions, 49 V.L.R. 478, 483 (1963).

    Adoption was known to the Egyptians, Assyrians and Hebrews, but reached a high level of legal development during Roman times. The primary purpose in early civilizations was to benefit the adopter by preserving continuity of family lines and religious rites, with the practice being used more as a will substitute than anything else. As primarily a creature of Roman law, adoption is found most prevalently in civil law countries today. Id.

    See also Walter Wadlington, Adoption of Adults: A Family Law Anomaly, 54 CORNELL EVL.R. 566, 567 (“Under Roman law, adoption became a well established practice which on some occasions even determine imperial succession.”) (citing H. OLFF OMAN W,RAWL 17, 45 (1951) (specific instances where adoption determined imperial succession)). Wolff, in fact, cites to a “long period of good government” that became possible by the fact that neither Nerva (who ruled briefly from A.D. 96-98) “. . . nor any of his first three successors had a son, so that they were able to select worthy successors through the formal step of adopting them.” Wolff, supra, at 17. From the earliest days of civilization, then, adopted children were often more worthy than their biological counterparts.

    20 Russell G. Donaldson, Annotation, Marital or Sexual Relationship Between Parties as Affecting Right to Adopt, 42 A.L.R.4th 776, ? 2[a] (1985).

    21 Id. (citing W. Wadlington, supra, note 19 at 567); Id. at ? 3[a] (citing In re Adoption of Robert Paul P., 63 N.Y.2d 233, 235 (1984)). One high profile example involved Doris Duke. Matter of Duke, 305 N.J.Super. 408, 415 (N.J. Super. Ct. Ch. Div. 1995). In 1924, James B. Duke, executed his will and two trusts. Id. One trust entitled the “Doris Duke Trust” was created for the benefit of Duke‟s daughter Doris and other named relatives. Id. This trust provided that two-thirds of the income should be paid to Doris each year until her death. Id. Upon her death, this two-thirds of the trust income would be paid to her lineal descendants for life not to exceed the perpetuities period. Id. At the expiration of the perpetuities period, two-thirds of the trust corpus would be paid to her lineal descendants. Id. If Doris died without lineal descendants, the trust would terminate and her portion would be paid to Mr. Duke‟s other trust, which had been set up for charitable purposes. Id. Doris had one biological child who died in infancy. Id. In 1988 at the age of 75, Doris legally adopted thirty-five-year-old Charlene Gail Heffner (later known as Chandi Duke Heffner) pursuant to the New Jersey adoption statute. Id. When Doris died in 1993, Chandi (as she was then known) demanded that the trustee start paying her Doris‟s two-thirds income interest (off of a corpus worth, in 1995 dollars, an estimated $170,000,000) since she was now a lineal descendant of Doris. Id. at 416. The issues before the court were many and complex, essentially boiling down to whether they should apply the adoption law in place when the trust was settled in 1925 (that did not allow adults to be adopted, only children), or the law passed 100 days after the execution of the trust that remained essentially unchanged explicitly allowing adult adoptions. Id. at 416 435. The court ruled against Chandi under the so-called “stranger to the adoption” doctrine; that Chandi was a stranger to testator Mr. Duke and that he almost certainly had not contemplated that an elderly Doris would adopt Chandi despite there being no parent-child relationship in the traditional sense. Id. at 435.

    22 Donaldson, supra note 20, at 776, ? 3[a] (citing Matter of Adoption of Robert Paul P., 63 N.Y.2d 233, 235 (1984)).

    23 Id.


    25 adoptions that are now being seen all over the country.

     Some background is important. Without exception in America, if an unmarried

    individual dies without a will, survived by an adopted child but no biological children, the

    adopted child will take all of the decedent‟s probate property via intestacy to the exclusion

    26of any other biological relative including siblings and parents. Even if someone has a will (making intestacy irrelevant, assuming the will withstands challenge), adoption

    generally keeps other relatives from having standing to challenge a will (more on this later).

    Adoption, then, is an obvious, well-tested technique that helps to ensure that the adoptee

    27takes the adoptor‟s property.

     In the first case study, IBM (a company then known by another name) hired Tom

    28Watson and in less than a year, he became president. He was the highest paid CEO in

    291930s America. Watson turned over the reins of IBM to his son, Tom Watson, Jr., in

    301952. Watson, Jr., established a large trust fund for the benefit of his children and

    grandchildren, such that his children would receive assets during their lifetime, and when

    Watson Jr. and his wife died, each of his grandchildren would receive trust payments once

    24 Though probably not an adoption of a lover, the following is illustrative of the genius of the human spirit. Some time in 1940, Jerri Blanchard began renting an apartment in Manhattan. 333 East 53rd Street Associates v. Mann, 503 N.Y.S.2d, 289, 289 (N.Y. App. Div. 1986). In 1970, Helen Mann moved into the apartment as a co-tenant with Blanchard. Id. In 1983, the building was converted to a co-op, but Blanchard and Mann were allowed to continue to rent under a rent-controlled regime, though at all times Blanchard was the only official tenant. Id. Five days after the conversion to co-op status, Blanchard‟s (then 83) adoption of Mann (then 67) became final via a New York County Surrogate Court order. Id. Blanchard died in 1984, at which time Mann invoked ? 56(d) of the New York City Rent, Eviction and Rehabilitation Regulations (see 9 NYCRR ? 2104.6[d]) that provides in part: “No occupant of housing accommodations shall be evicted under this section where the occupant is either the surviving spouse of the deceased tenant or some other member of the deceased tenant‟s family who has been living with the tenant.” Id. (emphasis added). The co-op association sued to evict Mann arguing that the order of adoption was fraudulent because it was obtained for the sole purpose of allowing Mann to keep the rent-controlled apartment after the death of Blanchard. Id. With one dissenter, the majority of the Appellate Division of the New York Supreme Court ruled for Mann saying that the adoption would not have been fraudulent even if the co-op association could prove it had been solely motivated by the desire to protected Mann‟s rights in the rent-controlled apartment after Blanchard‟s death. Id. at 291. The court cited the A.L.R.3d: “Most of the cases which permit the adoption of an adult have recognized, at least by implication, that the fact that an adult is adopted for the purpose of making him eligible to inherit property or to share in the distribution of a trust does not necessarily affect the validity of the adoption.” Id. (citing K.M. Potraker, Adoption of an Adult, 21 A.L.R.3d 1012, 1029 (1968)). 25 Unlike tracking the adoption of children, there are no statistics on the number of adults adopted lovers or otherwise in this

    country. See e.g., Karen Hawkins, Adult Adoption Isn’t Just About Flashy Court Cases, ASSOCIATED RESS EPORTPR (Mar. 12, 2007).

    26 ITT EV Jeffrey G. Sherman, Undue Influence and the Homosexual Testator, 42 U.P.L.R. 225, 253 (1981) (citing, e.g., ILL. REV.

    STAT. ch. 110 1/2, ?? 2-1(b), 2-4 (1979); 20 PA. CONS. STAT. ANN. ?? 2103, 2108 (Purdon Supp. 1979)).

    27 One sure disadvantage in addition to its obvious irrevocable nature is that adoption very often cuts off the ability of the adoptee from inheriting from his or her own natural parents under intestacy (the natural parents could still provide for the adoptee via a valid will). The law in this area varies dramatically from state-to-state. See, e.g., DUKEMINIER OHANSON INDGREN AND ITKOFF ,J,LS,ILLS RUSTS AND STATESW,T,E, 87 n. 1 (7th Ed. Aspen 2005). Just guessing, in most instances this is a probably only a minor drawback that can be remedied by the natural parents if desired. Peter N. Fowler, Adult Adoption: A “New” Legal Tool for Lesbians and Gay Men, 14 GOLDEN ATE EVGU.L.R. 667, 681 (1984) (“in the majority of instances, the possibility or expectation of inheritance from one‟s natural parents or relatives may be a minor factor in deciding whether to use adult adoption as a means to legitimate a lesbian or gay relationship and designate one‟s own heir”).

    28HE IMES Tim Reid, Adoption Could Earn Lesbian Lover a Fortune, TT Feb. 27, 2007, available at (last visited June 10, 2008).

    29 Id.

    30 Id.


    31 each turned 35 years old.

    32 One of Watson, Jr.‟s children was Olive Watson. As an adult, Olive was engaged in a

    33committed lesbian relationship with one Patricia Spado, a slightly older woman. Olive

    wanted to ensure that Patricia was well cared for in case Olive died, so she legally adopted

    34the older Patricia under the laws of Maine. As sometimes happens in any relationship,

    the two split apart about a year after the adoption was approved, with Patricia receiving a

    35$500,000 settlement in exchange for relinquishing a real estate claim. The settlement made clear, though, that Olive would at no time initiate any action to revoke or annul her

    36adoption of Patricia. Activists in the gay community said that the case showed just how

    far same-sex couples must go to obtain the rights that those able to marry are routinely


     Watson, Jr. and his wife eventually died, with the result being that Watson, Jr.‟s

    38grandchildren, who had reached the age of 35, immediately became trust beneficiaries.

    39There were 18 grandchildren known to the trustee of the trust, Thomas J. Watson III.

    40During probate, Patricia came forward as the putative 19th grandchild. As one article indicated, in what was undoubtedly an understatement, “this was not received warmly by

    4142Mr. Watson III.” Lawsuits in Connecticut and Maine ensued.

     For the homosexuals in jurisdictions that do not recognize same-sex marriage (or

    something close that yields many of the same benefits and burdens), adoption is one darn

    sure (or darn-close to darn sure) way of ensuring inheritance, albeit drastic (read

    43irrevocable). There are many contract-based methods that are available to any

31 Id.

    32 Id.

    33 Id.

    34 Id.

    35 Id.

    36 Id.

    37 Id.

    38 Id.

    39 Id.

    40 Id.

    41 Id.

    42 Id.

    43ONTEMP EGAL SSUES See, e.g., Mandi Rae Urban, The History of Adult Adoption in California, 11 J. C.LI 612, 615 n.21 (2000) (citing Gwendolyn L. Snodgrass, Creating Family Without Marriage: the Advantages and Disadvantages of Adult Adoption Among Gay and Lesbian Partners, 36 BRANDEIS AM J.F.L. 75, 83 (1998) (“Unless fraud or undue influence is present, adoption cannot be annulled”)). Another commentator gave this more complete analysis:

    Except in very narrow circumstances, [citation omitted] or unless the statute provides for it,


competent individual of majority wills, trusts, life insurance, retirement plans, powers of

    attorney for financial and health care matters, etc. but all are subject to claims by heirs-at-law (those who would take probate property absent a will) of undue influence

    44 These suits are more successful than one might against the partner-recipient of the assets.

    45imagine, since anti-gay biases are often quite evident in jury verdicts.

     To prevent blood relatives from having standing to sue after the death of the

    higher-net-worth partner, the lower-net-worth partner is adopted. Then the decedent

    would have a child who is his or her sole heir at law (the sole person who would take

    probate property absent a will) to the exclusion of siblings, parents, and more remote

    relatives. Because generally only heirs are given standing to sue to overturn a will or other

    contract to pass property, then the blood relatives are shut out completely from suing to

    46overturn a will (or trust or life insurance policy, etc.) on undue influence grounds. How


     In the second case study, we find one Luella Graybill, who set up a trust for her son

    Robert in 1914 to last during his life, with the remainder after Robert‟s death to “the heirs

    47at law of my said son.” If Robert died without any heirs, the estate was to be divided

    [citation omitted] once an individual has adopted her/his lover, the adoption cannot be abrogated. The adoptee is a legal heir forever unless by chance or design the adoptee is subsequently adopted by someone else. As a result, although either individual always has the power to disinherit the other [by will except in Louisiana], the adoption gives either the adoptor or adoptee the standing to contest the other‟s will, even if s/he has long since ended the relationship.

    Fowler, supra note 27, at 706; But see CAL IVIL ODE.CC ? 227(p) (6) (2007) (allowing an adopted adult to file a petition for termination of the adoptive relationship after written notification is provided to the adoptive parent).

    44 UKEMINIER ET ALSee generally, Sherman, supra note 26, at 255; D., supra note 27, at 158-86.

    45ENV EV Snodgrass, supra note 43, at 76 (citing Adam Chase, Tax Planning for Same-Sex Couples, 72 D.U.L.R.359, 386 (1995)).

    46See, e.g., In re Adoption of Brundage, 134 N.Y.S.2d 703 (1954), aff’d 143 N.Y.S.2d 611 (1955), appeal denied, 144 N.Y.S.2d 921 (1955) (adoptive parent‟s blood relatives are estopped from questioning validity of adoption order).

    47 Bedinger v. Graybill‟s Executor & Trustee, 302 S.W.2d 594, 596 (Ky. 1957). The court in Bedinger detailed a nice summary of the statutory nature and origins of adoption.

    Adoption, in the sense of voluntarily taking a child of other parents as ones own child, is of ancient origin. The history and development of adoption reflect its use as the means of establishing not only the social relationship of parent and child but as well its use for the exclusive purpose of making the adoptee eligible to inherit property the same as one born to a party in lawful wedlock. Adoption was practiced by ancient Egyptians and Hebrews. When Joseph went up out of Egypt to the land of Goshen to visit his sick father, Jacob, he took with him his two sons, born of an Egyptian mother, and presented them to his father. Jacob adopted them, and Manasseh and Ephraim took their stations and heritage as Jacob's heirs in the place of Joseph, and their descendants became two of the twelve tribes of Israel. Genesis, 41:50, 52; 48:5, 14-20. Years afterward Moses, the Hebrew child, was adopted by the Egyptian Pharaoh's daughter as her own son. Exodus 2:10. Adoption was a familiar Roman custom; and the modern law came to us from the civil law, for the practice was unknown in the English common law. Power v. Hafley, 4 S.W. 683 (1887). Hence, adoption has always been and is now strictly a statutory creation.

     Id. at 597. For more on the history of the law of adoption, see Potraker, supra note 24, at ? 2.


    48 Perhaps sensing that they were not ever going to produce between two charities.

    biological children, Robert (then 58 years old) got the bright idea to adopt his wife Louise

    (then 45 years old), thereby instantly producing a sole heir at law under the rules of descent

    4950and distribution in Kentucky. Robert died in 1955 without children. Robert‟s cousins (who would have been his heirs at law absent the adoption) and the two charities brought

    51suit, challenging the distribution to Louise. Citing to the very clear Kentucky adoption

    law that said “[a]ny adult person who is a resident of Kentucky may petition . . . for leave to

    52adopt a child or another adult, the Kentucky Court of Appeals ruled that Louise was the

    sole remainder beneficiary of the trust: “Neither the cleverness of the scheme of Graybill to

    establish his wife as the ultimate beneficiary of the trust estate, nor the incongruity of the

    legal status of the parent and child, can lead the court away from the fact that the adoption

    53was within the authorization of the statute.

     There was a strong dissent in the case that seemed to rely, for the most part, on the “ick” reflex (just in case it is not obvious, these are my words, not the dissenting judge‟s), and on the very real issue of the testator‟s intent: “[w]e perceive no reason for assuming that Harry

    Baylor Hanger contemplated that a child adopted by one of his own heirs at law should take

    54upon the death of the adoptive parent.” (For those not specializing in God’s work (trusts

    55and estates law), this concept is commonly known as the “stranger to the adoption” rule.)

     The majority decision of the Kentucky court did indeed think to look at the incest statute,

    56but as it was written at the time, the statute applied only to those related by blood. This implies that a court looking at a similar situation today in one of the many states listed

    below in Part IV that includes adopted relationships within the definition of incest

    could/should/would take a long, hard look at the incest statute to see if it is relevant.

     The latter case study brings forth the issue of whether adopted children are, in general

    (i.e., absent a sexual relationship between the adoptor and adoptee) included in the class

    gifts of ancestors who never knew the adopted child. Courts have gone both ways on this

    issue, with some courts refusing to allow individuals adopted as an adult to count as part of

    a class (such as “to my descendants” written into the trust document of a parent or

48Bedinger, 302 S.W.2d at 596.


    50 Id.


    52Id. at 597.

    53Id. at 600.


    55UKEMINIER T L See, e.g., DEA., supra note 27, at 655.



    57 while other courts have allowed adult adoptees to grandparent of the settler-adoptor),

    58qualify for class gifts. The Uniform Probate Code would disallow adult lover adoptees

    from taking a class gift through a decedent-adoptor, specifying that in construing class gifts

    “an adopted individual is not considered the child of the adopting parent unless the adopted individual lives while a minor … as a regular member of the household of the adopting


     Finally, there are, sometimes, other lesser advantages some tax-related and some not

    that encourage adult adoptions. In some states, the state inheritance tax rate is lower if

    property flows to a close relative than if it flows to someone unrelated, an advantage

    60mentioned in at least one reported case. One can also imagine almost countless other possible advantages, including (but certainly not limited to): access to health insurance

    coverage and other employee benefits of the adoptor; allowing recovery in tort actions and

    61survivor benefits; circumventing housing and zoning restrictions; life insurance

    6263beneficiary designation; Social Security payments; consent authorizations or visitation

57 WILLIAM M. MCGOVERN, JR. & SHELDON F. KURTZ, WILLS, TRUSTS AND ESTATES, 104 n.46 (3d ed. 2004) (citing Matter of Trust Created by Belgard, 829 P.2d 457 (Colo. Ct. App. 1991); Matter of Duke, 702 A.2d at 1007; Cox v. Whitten, 704 S.W.2d 628, 628 (Ark. 1986) (48-year-old adoptee); Cross v. Cross, 532 N.E.2d 486, 488-89 (Ill. App. Ct. 1988) (the “adoption of an adult solely for the purpose of making him an heir of an ancestor under the terms of a testamentary instrument known and in existence at the time of the adoption is an act of subterfuge” that “does great violence to the intent and purpose of our adoption laws”); In re Estate of Ida Graham Ketcham, 495 A.2d 594, 597 (Pa. Super. Ct. 1985) (85-year-old life tenant adopted a 56-year-old in an attempt to qualify as a “child” of the life tenant under the terms of the textatrix‟s will that directed the life tenant‟s estate be paid as a gift over to third parties if the life tenant died without children: court said this was “a blatant attempt to rewrite the testatrix‟s will . . . to prevent a gift over in default of a natural child or children”); In re Nowells Estate, 399 N.W.2d 861, 863 (Mich. Ct. App. 1983) (statutory presumption that adopted persons are included within the term “child” does not operate in favor of a person adopted as an adult when an examination of the circumstances shows that the probable intent of the testator was not to include the adopted adult as a beneficiary); Bürgerliches Ge-setzbuch [BGB] [Civil Code] 2008 ? 1771(1), sentence 1, available at (last visited July 3, 2008) (adoption of an adult normally has no effect on relatives of the adopter)).

    58COVERN ET ALMG., supra note 57, at 104 n.47 (citing Solomon v. Central Trust Co., 584 N.E.2d 1185, 1186 (Ohio 1992) (adoptee had lived with adopter from age 9, even though adopted as an adult); Satterfield v. Bonyhady, 446 N.W.2d 214, 215 (Neb. 1989) (adopted stepchild); In re Estate of Joslyn, 45 Cal.Rptr. 612, 616 (Cal. Ct. App. 1995); Hagaman v. Morgan, 886 S.W.2d 398, 399 (Tex. App. 1994) (stepdaughter); Evans v. McCoy, 436 A.2d 436, 437 (Md. 1981) (adoption of a 53-year-old cousin bars a gift over on death “without issue”)).

    59COVERN ET ALNIF ROBATE ODEMG., supra note 57, at 105 (citing U.PC ? 2-705(c) (1990) (applying only when donor or testator is a stranger to the adoption).

    60 See, e.g., In re Adoption of Swanson, 623 A.2d 1095, 1096 (Del. 1993) (court allowed one man (age 66) to adopt his “companion of 17 years” (age 51) with the complaintants offering a three-fold purpose to “formalize the close emotional relationship that had existed between them for many years,” to “prevent collateral claims on their respective estates from remote family members,” and to “obtain the reduced inheritance tax rate which natural and adopted children enjoy under Delaware law”). Note that Delaware has since repealed its inheritance tax and replaced it with an estate tax that does not differentiate the rate based on who is receiving the property. 71 DEL .AWSL, c. 353, ? 10, eff. Jan. 1, 1999. Eleven states still collect an inheritance tax, including: Connecticut, Indiana, Iowa, Kansas, Kentucky, Maryland, Nebraska, New Jersey, Oregon, Pennsylvania, and Tennessee. See Retirement Living Information Center, (last visited July 3, 2008). In some of these states, transfers to children are exempt from taxation completely, or have a reduced taxation rate. Id. Adult adoption also triggers some income tax considerations, including dependency exemptions and head of household status. Chase, supra note 45, at 388. 61See, e.g., Gwendolyn L. Snodgrass, Note, Creating Family Without Marriage: The Advantages and Disadvantages of Adult Adoption Among Gay and Lesbian Partners, 36 BRANDEIS AM J.F.L. 75, 82-83 (1997) (“Because adult adoption creates a legal relationship between two people, it also creates the right to recover damages in tort for actions available only to family members.”). Snodgrass also cites the case of a man that witnessed the physical assault of his gay partner, but was unable to recover tort damages. Id. at 83 (citing Coon v. Joseph, 237 Cal. Rptr. 873 (Cal. Ct. App. 1987)). 62 As one commentator explained:


    64 attainment of privileges relating to hospitals, jails, and other governmental agencies;

    6566immigration status; obtaining royalty status; taking advantage of rent control; and, something near and dear to my heart, permitting an adopted child of a university employee

    67to enroll in said university (or a reciprocal university) free of charge.


    68We know it’s strange, but does it hurt anybody?

     This Article addresses two types of non-core family concepts: adult adoption and

    adoptive incest. Neither is what people typically think of when they think of adoption or

    incest. In this way, they are related. They are related in another way: Courts and

    legislatures have tried to set policy/determine the validity of both (absent the federal

    constitutional overlay only recently present post-Lawrence) by using almost exactly the same set of arguments discussed in detail below. The statutory and common law bottom

    lines of both, in addition, vary dramatically between jurisdictions. Precisely because they

    are both non-core, there is something tangibly important to looking at both in a single piece

    since adult adoption and adoptive incest have more in common than people might think at

    first glance.

    Before they will issue life insurance policies, insurance companies often require evidence of a close relationship between the insured and her/his proposed beneficiary. While an individual may designate anyone she/he wishes as beneficiary, and some states prohibit carrier discrimination in the issuance of policies on the basis of sexual orientation [citation omitted], prospective heirs might raise undue influence to attack the deceased policyholder‟s designation of beneficiary. In such instances, adoption may provide persuasive factual evidence as to the relationship between the beneficiary and the inured thus countering an allegation of undue influence. Fowler, supra note 27, at 682.

    63ARQ LDERS DVISORAngela Chaput Foy, Adult Adoption and the Elder Population, 8 M.EA 109, 119 (2006). 64Fowler, supra note 27, at 681.

    65 My friends, colleagues, and students all know that I can work Anna Nicole Smith into virtually any discussion given the myriad legal (and other) issues surrounding her life and death. This article is, by goodness, no exception. One of the men who claimed to be the father of Anna‟s daughter, Prince Frederick von Anhalt, (since proven by DNA testing not to be the father) the 59-year-old husband of actress Zsa Zsa Gabor, obtained his royal title by being adopted as an adult by a German princess. Hawkins, supra note 25. The Prince, who claimed to have had a decade-long affair with Anna, wanted to adopt Anna so she could fulfill every young girl‟s dream of becoming a princess. Id. (By the way, how cool would that have been!) Not surprisingly, Gabor would not sign the necessary paperwork to effectuate the adoption. Id. Yet another heartwarming Anna story.

    66See, e.g., discussion, supra, note 24 of 333 East 53rd Street Associates v. Mann. 67Urban, supra note 43, at 612 & n.1. One last note, in case you believe the author made an error by omission: The Woody Allen/Soon-Yi Previn relationship is not germane to this article in the strict legal sense as Mr. Allen was never Ms. Previn‟s adopted father, nor was she ever his stepdaughter. See generally, Marion Meade, The Unruly Life of Woody Allen, (Cooper Square Publishers, 2001). Nonetheless, many who followed this very public and controversial relationship were repulsed in a way quite similar to the aversion often displayed toward relationships between two individuals who have been in a legal parent/child relationship. Doubtless, there are many such relationships that never enter the public sphere.

    68Wadlington, supra note 19, at 579.


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