Syracuse University

Fair or Foul? Inheritance-Driven Adult Adoption Within Same-Sex Partnerships

Terry Turnipseed

There is a growing trend in this country—startling to many—of adopting one's adult lover or spouse for various (although mostly inheritance-based) reasons. Courts all around the country are struggling to figure out whether or not these adoptions should be upheld. Though few seem to realize it right now, the outcome of this battle might well impact millions of American lives.

On July 23, Maine's Supreme Judicial Court approved the adult adoption by Olive Watson of her lesbian lover. Now deceased, Olive was the granddaughter of Tom Watson, one of IBM's founders and the highest-paid CEO in the 1930s, and the daughter of Tom Watson, Jr., who took over the reins of IBM from his father in 1952. Watson Jr. established a very large trust fund for the benefit of his children and grandchildren. He stipulated that his children would receive assets during their lifetimes and that his grandchildren would receive large trust payments after the passing of Watson Jr. and his wife and upon reaching the age of 35 years old. The fortunate adoptee and benefactor of last Thursday's court ruling, Patricia Spado, may now be in line to be an unanticipated grandchild-beneficiaries of the Watson Jr. trust.

Olive simply wanted what many want for their loved ones: to ensure that her lover Patricia was well cared for in case Olive died. As such, she adopted the older 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 legally able to marry are routinely granted. At the time, obviously, Maine did not allow same-sex marriages.

For 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), albeit drastic (read "irrevocable"), way to ensure an inheritance. There are many contract-based methods that are available to any competent individual who has reached the age of majority: wills, trusts, life insurance, retirement plans, powers of attorney for financial and health care matters, etc.; but all are subject to the claims of heirs-at-law (those who would take probate property absent a will) of undue influence against the partner-recipient of the assets. These suits are more successful than one might imagine since anti-gay biases are often quite evident in jury verdicts. If a lover or spouse is a "child", however, this status keeps biological relatives from even having the right to sue.

In many states, however, there could well be one pretty serious repercussion to all of this for the adopter and the adoptee: the possibility of an incest conviction resulting in serious jail time. Think about it: the person is having sexual relations with his or her legal child. Is that not incest? At least 25 states and territories, representing over 140.8 million people (approximately 46 percent of the total population) in the U.S., are subject to laws that include the adopted parent/adult child relationship within the definition of incest. However, even if a state agrees that this behavior is incest, there is now some question regarding whether the 2003 U.S. Supreme Court case Lawrence v. Texas (which struck down an anti-sodomy law) might now protect this behavior, preventing these people from being successfully prosecuted for this type of incest. This will be the first post-Lawrence Supreme Court individual sexual privacy rights case. Given the three new Justices on the Court since Lawrence was handed down, no one can be certain how such a case will be decided.

In no less than four instances, Justice Scalia's dissent in Lawrence (in which he was joined by three other Justices) warned that adult incest can no longer be outlawed by state or federal governments: with the decision in Lawrence, Justice Scalia lost his incest repellant. Indeed, if this type of incest is now protected by the U.S. Constitution, might the whole house of sexual-crime cards fall with it? Along with this strand of incest laws might also go laws addressing the so-called “core” incest (sexual relations between a biological parent and an adult child or adult biological siblings), adultery, bestiality, masturbation, fornication, bigamy, and possibly even the brass ring of same-sex marriage protection.

Because of its potential importance to the issue of whether same-sex marriage is constitutionally protected, everyone should be paying much more attention to these adult adoption battles that are occurring with increasing frequency across the nation. Olive and Patricia may well have unwittingly set in motion an irreversible legal freight train that may not stop—for better or worse, for richer or poorer—until same-sex marriage is available in every state.

Terry L. Turnipseed is an associate professor at Syracuse University College of Law.

This article was originally published in JURIST on August 24, 2009.