Where There’s Not a Will, There’s a Way: What We Can Learn From Same-Sex Adult Adoption

Sharon Maher[1]

Like many same-sex couples hearing about the landmark decision in Obergefell v. Hodges,[2] Bill Novak and Norman MacArthur were excited to finally marry each other. But unlike most couples, Novak and MacArthur still had one more legal hurdle in the way of their union: they were legally father and son.[3] In 2000, after 37 years of being together, Novak adult adopted MacArthur, based on the suggestion of their attorney.[4] The adult adoption allowed the couple to have their existing familial relationship cemented into law.[5] During the 1980s, same-sex adult adoption had risen in popularity[6], and by 2000, it was a recognized avenue for couples hoping to secure some of the legal rights their heterosexual counterparts have always enjoyed.[7] Furthermore, at the time Novak and MacArthur were pursuing an adult adoption, no one saw legal same-sex marriage as a possibility.[8]

Thankfully, after the Obergefell decision was announced, Novak and MacArthur were able to have their adoption vacated, and they married 10 days later.[9] Although the practice of same-sex adult adoption is unlikely to be used post-Obergefell, there are many lessons that we in the legal profession can learn from its history and practice. 

Lesson 1: Creative Legal Advocacy Can Change Lives & Laws.

Same-sex adult adoption is certainly an unconventional notion. It is difficult to think of adoption as being available for anyone other than people with a parent-child relationship. Because of this, the ingenuity (and courage) of attorneys and couples who first brought these petitions cannot be understated.

The legal support behind the argument that adult adoption includes same-sex couples (especially in the light of these couples not having the option to marry) is actually quite cohesive with the purpose of adoption itself. Adoption is primarily a tool to secure the succession of property and inheritance.[10] In court, the use of property/inheritance arguments was especially effective.[11] 

Adoption also serves to formalize the already-present familial bonds between two people (the adopter and the adoptee) and their other family members.[12] Through this formalization, it allows the parties to have recognized legal rights to visitation and other medical access, which has especially been denied to same-sex couples.[13] While some courts did deny adoption petitions to same-sex couples because their states’ laws required that familial bond to be strictly “parent and child,” other states’ statutes are no so restrictive.[14] Courts approving same-sex adoption petitions have noted that adoption is used for more than legalizing a parent-child relationship: “Adult adoptions have long ‘served as a legal mechanism for achieving economic, political, and social objectives rather than the stereotype parent-child relationship.’”[15] Furthermore, during its popularity, lower courts would sometimes deny the adoption petition because a parent-child relationship did not exist but appellate courts would often overrule these decisions.[16]

For those who got them, adult adoptions changed same-sex couples’ lives. Adoptions meant that couples were able to visit each other in the hospital (which was especially important during the AIDS epidemic late 20th century), serve as executors of the other’s will, and ultimately, inherit property at the other’s passing.[17] For couples with children, adult adoption allowed for all family members to be legally linked. For example, Lillian Faderman and Phyllis Irwin had been together for 4 years when Faderman gave birth to their son. Nearly 10 years later, Irwin adopted Faderman, which allowed her to also be their son’s legal grandmother and enjoy the rights granted to legal family members, such as taking him to the doctor.[18] 

These families’ stories are just a minute sample of the impact that adult adoption had on the queer community. Such legal victories (in addition to the longstanding, incredibly advocacy from LGBTQ+ activists) show that as a community, LGBTQ+ people will not give up on securing rights. The historic path towards marriage equality, including the history of adult adoption, shows that such advocates are especially successful at securing familial rights.[19] There are current and future legal battles over LGBTQ+ rights (whether for partners trying to adopt their own kids[20], transgender students and athletes wanting to be recognized and respected[21], or a slew of other conflicts[22]), the outcomes of which will be determined by creative advocacy.

Lesson. 2: Legal institutions should address the complex situations they create.

Couples who decided to pursue adult adoption sought to secure the rights to access each other and their property. Adult adoption was both a solution to the existing problems of property and inheritance rights, as well as a complicating measure once Obergefell was decided. This section addresses what we can learn from adult adoption as a solution and a complication, both of which resulted because of our legal institutions’ unwillingness to create simple, streamlined approaches to same-sex familial rights.

Inheritance and property rights are important aspects of familial relationships. Adult adoptions were primarily used to secure these rights. While there are other ways to contract inheritance and other property succession[23], adoption and marriage are the most simple, effective, and predictable.[24] Contracts and wills can be overturned by courts when challenged by blood relatives seeking the deceased’s property.[25] Furthermore, contracts for cohabitation, domestic partnerships, durable power of attorney, and other alternatives fall short of the full benefits of the law that adoption and marriage provide.[26] 

While same-sex adult adoption was an effective response to unstable and unpredictable options previously accessible to same-sex couples, it is no replacement for marriage. Adult adoptions for romantic partners also should not have been necessary in the first place: societal (and by extension, judicial) unwillingness to recognize same-sex couples as being legitimate as opposite-sex couples meant that the former were forced to fill in the legal gaps of their relationships with an unconventional and less effective solution.[27]

Furthermore, in a post-Obergefell world, the couples who have an adoptive relationship are stuck in a limbo.[28] While Bill Novak and Norman MacArthur were fortunate to find a court that was willing to vacate their adoption, not all couples are so lucky. Some couples cannot marry while their adoption relationship exists because they live in a state that prohibits adoptive parents and children from marrying.[29] In this situation, the partners’ only option is vacating the adoption.[30] Others like Novak and MacArthur, who do not legally need their adoption vacated but desire to do so in order to simplify their legal standing, are similarly restricted to only an adoption vacation.[31] 

There are two remedies for this situation, and neither are easy nor guaranteed. Furthermore, it appears that neither has been implemented nationwide in over five years since Obergefell was published. The first remedy is for judges to consistently vacate these adoptions without room for unpredictability. This is obviously a jurisdiction-by-jurisdiction, judiciary-driven solution, which will be exceedingly slow and not at all predictable.

The other option is legislature-driven: each state’s legislature should require courts to vacate these adoptions, without room for discretion.[32] As of 2021, does not appear that recommendation has been heeded by any legislatures. Instead, this limbo has persisted.

This particular legal issue represents just one facet of the complexity of LGBTQ+ people’s and couple’s legal standing in the United States.[33] The laws, the legislatures, and the courts of this country are too often complacent to remedy these situations. Not only are our political and legal bodies apathetic, but they are often (and have been historically been)[34] deliberately harmful towards LGBTQ+ people.[35] While it is important that the Supreme Court has secured legal rights for the LBGTQ+ community, so much more work must be done to limit discrimination, hate, and violence experienced by queer, trans, and gender nonconforming people. Legal institutions should not add to this burden by refusing to carve out pathways to marriage for couples that adopted each other before legal marriages were even viable.

While same-sex adult adoption is unlikely to continue, we can certainly learn from the legal advocacy that led to its popularity. Furthermore, Obergefell, just like adult-adoption, did not solve all of queer people’s problems: the LGBTQ+ community—especially queer, trans, and gender nonconforming people of color—still face significant discrimination and violence.[36] The legal system is one important institution that will need to continue working for the rights of this community and other marginalized groups.

[1] University of Minnesota Law School, 2022 J.D. Candidate

[2] 576 U.S. 644 (2015) (striking down prohibitions on same-sex marriage nationwide).

[3] Elon Green, The Lost History of Gay Adult Adoption, The New York Times Magazine (Oct. 19, 2015), https://www.nytimes.com/2015/10/19/magazine/the-lost-history-of-gay-adult-adoption.html.

[4] Id.

[5] Id. (“[T]he adoption was a means to an end.”).

[6] For comprehensive review of the motivating reasons for and against same-sex adult adoptions, see generally Snodgrass, supra note 8. See also, Green, supra note 3 (noting that the HIV/AIDS epidemic in the 1980s also spurred adult adoption for couples who wanted to ensure visitation and inheritance rights).

[7] Green, supra note 3; see also Terry L. Turnipseed, A Florida Millionaire Adopted His 42-Year-Old Girlfriend Isn’t That Incest?, Slate (Feb. 7, 2012), https://slate.com/news-and-politics/2012/02/should-a-florida-millionaire-be-prosecuted-for-incest-because-he-adopted-his-girlfriend.html (explaining that partners in opposite-sex relationships also adult adopt one another, primarily for inheritance reasons).

[8] See Gwendolyn L. Snodgrass, Creating Family without Marriage: The Advantages and Disadvantages of Adult Adoption among Gay and Lesbian Partners, 36 Brandeis J. Fam. L. 75, 94 (1997).

[9] Green, supra note 3.

[10] Robert Keefe, Sweet Child O’ Mine: Adult Adoption & Same-Sex Marriage in the Post-Obergefell Era, 69 Fla. L. Rev. 1477, 1481 (2017); Russell E. Utter Jr., The Benefits and Pitfalls of Adult Adoption in Estate Planning and Its Likely Future in Missouri, 80 UMKC L. Rev. 255, 255 (2011) (“[M]any times adoptions are used to secure inheritance rights for the adoptee.”).

[11] E.g., Snodgrass, supra note 8, at 89 (referencing In re Adult Anonymous II, 452 N.Y.S.2d 198 (1982)).

[12] For example, in traditional parent-child adoptions, it is common for a step-parent to adult adopt their spouse’s child. Same-sex adult adoption may similarly allow a nonbiological parent to adopt their spouse and become legally related to their child (as the child’s legal grandparent), if marriage and same-sex child adoption are not available.

[13] E.g., Garrett Riou, Hospital Visitation and Medical Decision Making for Same-Sex Couples, Ctr. for Am. Progress (Apr. 15, 2014, 9:33 AM), https://www.americanprogress.org/issues/lgbtq-rights/news/2014/04/15/88015/hospital-visitation-and-medical-decision-making-for-same-sex-couples/.

[14] Cal. Fam. Code § 9300(a) (West) (“An adult may be adopted by another adult, including a stepparent, as provided in this part.”).

[15] Keefe, supra note 10, at 1482 (quoting In re Adult Anonymous II, 452 N.Y.S.2d 198, 200 (App. Div. 1982)).

[16] Snodgrass, supra note 8, at 81 (“The creation of a ‘pseudo-marriage’ is precisely the motive that the courts have disdained, usually for reasons of public policy. This attitude is more prevalent among lower courts; appellate courts have generally reversed decisions based on such reasoning, even in states with statutes outlawing sodomy between consenting adults.”).

[17] Green, supra note 3.

[18] Id.

[19] See also, Jeff Brady, 5 Years After Same-Sex Marriage Decision, Equality Fight Continues, NPR (June 26, 2020, 4:04 PM), https://www.npr.org/2020/06/26/883908854/5-years-after-same-sex-marriage-decision-equality-fight-continues (noting that marriage equality is just one form of discrimination that has been legally prohibited, while many other remain legally and socially pervasive, especially for LGBTQ+ people with intersectional identities).

[20] Julie Moreau, LGBTQ Parents Face ‘State-Sanctioned Discrimination,’ American Bar Association Says, NBC News (Feb. 6, 2019, 3:10 PM), https://www.nbcnews.com/feature/nbc-out/lgbtq-parents-face-state-sanctioned-discrimination-american-bar-association-says-n968456 (“10 states now permit state-licensed welfare agencies to refuse to place children with LGBTQ individuals and same-sex couples if doing so conflicts with the agency’s religious or moral beliefs.”).

[21] Anoka-Hennepin School District Sued for Discriminating Against LGBTQ Student, ACLU Minn. (Feb. 25, 2019), https://www.aclu-mn.org/en/press-releases/anoka-hennepin-school-district-sued-discriminating-against-lgbtq-student.

[22] See Sharita Gruberg, Lindsay Mahowald, and John Halpin, The State of the LGBTQ Community in 2020, Ctr. for Am. Progress (Oct. 6, 2020, 9:00 AM), https://www.americanprogress.org/issues/lgbtq-rights/reports/2020/10/06/491052/state-lgbtq-community-2020/ (“Overall, this study finds that many LGBTQ people continue to face discrimination in their personal lives, in the workplace and the public sphere, and in their access to critical health care.”).

[23] Snodgrass, supra note 8, at 75–76.

[24] Id. at 79 (“While [other] legal strategies benefit[] the parties in ways that parallel the legal benefits of marriage, none offers the benefit of a legal family bond and none carries inalienable inheritance and estate rights. Adoption does both . . . .”); Keefe, supra note 10, at 1483–84.

[25] Snodgrass, supra note 8, at 75–76.

[26]  Id. at 77.

[27] See Id., at 83–85 (discussing the disadvantages of same-sex adult adoption); Utter Jr., supra note 9, at 264–266 (discussing the disadvantages of adult adoption generally).

[28] Keefe, supra note 10, at 1479.

[29] Id; e.g., Terry L. Turnipseed, Scalia’s Ship of Revulsion Has Sailed: Will Lawrence Protect Adults Who Adopt Lovers to Help Ensure Their Inheritance from Incest Prosecution?, 32 Hamline L. Rev. 95, 121 (2009) (noting every state that has an statutory incest definition that includes adopted parents and children).

[30] Green, supra note 3 (“For the time being, a lot rests in the hands of judges, who have the power to vacate adoptions.”).

[31] Id. (quoting Novak’s and MacArthur’s attorney) (“However, petitioners believe that other legal complications could result if they were to marry without having the adoption vacated.”).

[32] Keefe, supra note 10,  at 1480 (recommending this solution).

[33] Id. at 1479 (“Obergefell ended the patchwork system of state laws and ended the uncertainty hundreds of thousands of same-sex couples face[d] from not knowing whether their marriages would be recognized as legitimate if they moved to a different state.”); See generally, Mary E. Shea, A Modern Civil Rights Movement: What Lawyers Need to Know About LBGTQ Families, 62 Advocate 35 (2019) (explaining the current—as of 2019—state of family law for LGBTQ+ people).

[34] E.g., Bowers v. Hardwick, 478 U.S. 186, 186 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003) (“And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.”); see also Thomas J. Coleman, Jr., Disordered Liberty: Judicial Restrictions on the Rights to Privacy and Equality in Bowers v. Hardwick and Baker v. Wade, 12 T. Marshall L. Rev. 81, 92 (1986) (calling Hardwick’s decision a “vindication of Privacy”).

[35] E.g., Zalman Rothschild, ‘Religious Equality’ Is Transforming American Law, The Atlantic (Oct. 29, 2020), https://www.theatlantic.com/ideas/archive/2020/10/coming-threat-gay-rights/616882/ (explaining Justice Clarence Thomas’s and Justice Samuel Alito’s recent concurrence, which “attacked” Obergefell).

[36] E.g., Fatal Violence Against the Transgender and Gender Non-Conforming Community in 2020, Human Rights Center, https://www.hrc.org/resources/violence-against-the-trans-and-gender-non-conforming-community-in-2020 (last visited Jan. 31, 2021) (listing the names of transgender and gender non-conforming individuals who were killed in 2020).