Dead Person Adopts from The Grave

In the Matter of W.R. and L.R. for the Adoption of S.W.
FAMILY LAW — Adoption
The court grants the final legal adoption to both prospective adoptive parents, including the deceased adoptive parent, effective the date of the filing of petition for adoption, crafting a four-part test designed to protect the best interests of the child and the adoptive parents.

The court may, for good cause, direct the entry of judgment of adoption nunc pro tunc (now for then) as of the date the petition for adoption was instituted

I/M/O W.R. and L.R. For The Adoption of S.W., __ N.J. Super. __ (Law Div. 2010), FA-06-08-10A, March 2, 2010:

Adoption was not recognized at common law and it is a creation of a statute. N.J.S.A. 9:3-37. The New Jersey Adoption Act, which governs adoption is liberally construed so that the best interests of the children are promoted and due regard is given to the rights of all persons affected by an adoption. N.J.S.A. 9:3-37. More directly, N.J.S.A. 9:3-50(b), states that the court may, for good cause, “direct the entry of judgment of adoption nunc pro tunc as of the date the petition for adoption was instituted.” N.J.S.A. 9:3-50(b). The statute also gives the adoptive child the same rights of inheritance as a child born in lawful wedlock of the adopting parent. N.J.S.A. 9:3-50(b).

If the child sought to be adopted is of the age of ten years or over, the appearance of the child shall be required at the final adoption hearing, unless waived by the court for good cause shown, and the child’s wishes concerning the adoption shall be solicited by the court and given consideration if the child is of sufficient capacity to form an intelligent preference regarding the adoption. N.J.S.A. 9:3-49.

New Jersey recognizes the doctrine of equitable adoption as a theory of inheritance under intestacy. Burdick v. Grimshaw, 113 N.J. Eq. 591, 596,168 A.2d 186, 188 (N.J. Ch. 1933). Equitable adoption is a device which can be used to support a claim for benefits which would be available if a legally recognized parent-child relationship existed, such as claims for an intestate share, workers’ compensation benefits, social security benefits, and life insurance benefits.” In the Matter of the Adoption of Baby T., 311 N.J. Super. 408, 416, 709 A.2d 1381 (App. Div. 1998).

The Adoption Act has undergone major revisions in the past twenty years. The legislative history reveals that the revisions were intended “to simplify and clarify the provisions governing adoption proceedings” to promote adoptions. See statement to Senate Judiciary Committee, accompanying S. 1631, 197th Leg., 1st Sess. (N.J. 1976). In 1977, the Legislature included a broad statement that the Act should be liberally construed to promote the best interests of the adoptive children involved and that “due regard shall be given to the rights of all persons affected by an adoption.” L. 1977, c. 367 § 1 (repealed 1993 and recodified as amended at L. 1999, c. 53, §1). As such, when the court is considering an adoption the best interests and welfare of the child should be the paramount consideration of the court…” In re Adoption of G., 89 N.J. Super. 276, 281, 214 A.2d 549 (Cty. Ct. 1965).

N.J.S.A. 9:3-50(b) states that the court may, for good cause, direct the entry of a final judgment of adoption nunc pro tunc as of the date the petition for adoption was instituted. The statute permits the granting of an adoption going back to the date of filing. The date of filing is important because it will permit the court to grant the adoption even after the death of a prospective adoptive parent and may provide the child with the opportunity to enjoy certain benefits from the deceased parent. For example, the child may be eligible for social security survivor benefits, life insurance benefits, veteran’s benefits, immigration status, medical insurance and other benefits that arise from the death of a parent.

Before granting an adoption nunc pro tunc, after the death of an adopted parent, sufficient evidence must be presented to support a finding that: (1) there was an agreement to adopt, (2) the nature of the relationship was that of a parent-child, (3) the intent of the deceased parent was to adopt, and (4) granting the adoption is in the best interests of the child.