A Strong Offense
A Stronger Defense
In a virtual adoption, the ‘adopting parent’ orally agrees to adopt the child of another as his or her own without actually legally adopting the child and all parties act on the oral agreement to adopt. Virtual adoption is not legal or statutory adoption. It is an equitable remedy that is applied only upon the death of the ‘adopting parent’ to avoid an unfair result to the ‘adopted child’ by the application of intestacy laws.
In Johnson v. Rogers, the Georgia Supreme Court reaffirmed that this equitable doctrine can only be applied where the ‘adoptive parent’ dies intestate. In other words, the equitable doctrine of virtual adoption has no application where the ‘adoptive parent’ disposes of his or her estate by will. In reaffirming the intestacy requirement, the court expressly noted that the “intestacy requirement is completely consistent with the law of equitable or virtual adoption in other states.”
Where you may end up seeing the doctrine come up is in a will contest. The purported virtually adopted child may file a caveat to a will. If the caveat is successful, then the intestacy requirement is met, and the ‘adopted child’ can then try to get an intestate share of the estate. But, if the will is found to be valid, then the virtual adoption doctrine cannot apply.