Hello lovely people and welcome to another episode of Queer History 101 - rainbow coloured
tales from our past that you probably didn’t learn about in school.
In today’s episode: have you ever heard of same-sex adult adoption???
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Now, you’ve probably heard of adoption before: it’s the creation by judicial order of a
parent-child relationship, generally with the underlying desire to provide a child with
a family structure and basic necessities.
And you’re probably picturing a single adult or a couple and a small baby or child under
the age of eighteen… but in some countries, like the US, Canada, Japan, Germany and Spain,
that’s not the only type of adoption available
- and the version that’s between two adults actually has a very queer history.
In both the adoption of a child and of an adult, the adoption bestows significant inheritance,
medical, and countless other rights upon those involved.
In a more emotional sense, adult adoption can also formalise the relationship with a
foster or step child (it isn’t just about money and benefits)
- But sometimes…
it really is.
Begining in the 1970s, before the legalisation of same-sex marriage, adult adoption was used
to legally define same-sex relationships for the protection that having your relationship
recognised by the government bestows.
- After all, if you’ve been with your partner for 40 years and have shared your home together
for 30 years, shouldn’t YOU be allowed to live in it when they die?
But what’s this, their blood relatives, who threw them out as a teenager, are suddenly
back to claim half of everything and you have no legal standing because THEY are the next
of kin since marriage was never even available to you two so whoops you have to move out!
How is that okay?!?!
It isn’t.
It isn’t okay.
You know what you could do though?
Pull out the adoption certificate that shows your partner legally adopted you before they
died, making YOU their next of kin and now everything you shared rightfully belongs to
you as the surviving partner!
- Trump card!
[beat] oh that phrase is ruined…
Adult adoption was relatively rare in the 19th century- and actually is still not allowed
in the UK today, as the person being adopted has to be under the age of 18 on the day the
application is submitted.
Which is bizarre, when you think about it- as if you suddenly hit your 18th birthday
and don’t need anyone’s help or guidance or have a desire for parental figures when
you did the day before.
You don’t get an instant midnight download of the latest ‘how to be an adult’ patch
update and, wow, you can now get a proper job, cook complex food and work out how to
pay taxes, let’s stop pretending like that’s the case.
It’s really complex and scary.
- Science says your brain isn’t even matured until 24 so why are we kicking kids out six
years early?
Speaking of kicking children out…
Adult adoption by same sex partners had many pros, including legally reforming families
around people who may have lost their own biological ones due to homophobia and thus:
the creation of a family unit.
Adult adoption was also the only means to legally recognise family relationships in
countries and states where same-sex marriage was illegal.
The family unity also allowed same-sex couples to have an easier time legally when dealing
with any children as the child would be related to both as well as both being able to gain
custody should one partner die
- although that child may have one of their parents listed on legal paperwork as their
‘grandparent’ or ‘uncle/aunt’ in this arrangement.
Of course, adoption of a person involves the severing of their ties to their biological
family and whilst some saw this as a positive, it cannot be said that all did yet there were
too many benefits to this marriage loophole to ignore…
It was not until 26 June 2015, the U.S Supreme Court legalised same-sex marriage in all fifty
states in Obergefell v. Hodges.
Whilst it’s true that marriage automatically conveys inheritance rights in many places,
being someone’s child does the same
- although one usurps the other, but we’ll talk about that in a minute…
If an unmarried individual dies without writing a will, and has a "child" (in inverted commas
because sometimes these adoptions were the younger partner adopting the older partner,
which I find intriguing), the adopted child will take all of the adoptor's property.
Inheritance rights once adult adoption takes place are completely automatic and no other
legal forms are needed.
It was a great way for same sex couples in the 70s, 80s and 90s to make sure that their
partner would be taken care of upon their death, particularly when one had a disability
or health condition or otherwise knew that they might die early.
- Remember as well that ‘next of kin’ goes up as well as down.
If you’re unmarried and have no children your next of kin is your legal parent.
Same sex marriage was passed into law in the UK the year I met my now wife.
I can’t bear the thought that had it not been and were something to happen to one of
us, the other would be left to quibble with lawyers about valuables and what belongs to
whom and what happens to our house- when we’re partners for life and, should I die, EVERYTHING
is hers and vice versa!
- yes, I do know that wills exist but don’t tell me that no homophobic family ever came
along and contested one!
Moving on from death… adoption provides benefits for same-sex partners whilst they
are still alive through said next of kin privileges.
That designation allows a person to be legally recognized as the “closest living relative
of another,” which in turn provided “privileges in case of hospitalisation or imprisonment
[and conferred] decision-making authority in case of emergency or incapacity.”
You can also get work benefits like… big one for the Americans in the audience: health
insurance!
You’re probably wondering: “but civil unions and domestic partnerships existed at
the time, why didn’t they just go for those?!”
Because, interestingly enough, they were not as widely available or widely recognised as
adult adoptions.
Before the nationwide legalisation of same-sex marriage in the United States, only four states
allowed for civil unions between same-sex couples and only six states and the District
of Columbia allowed for domestic partnerships between same-sex couples.
BUT most states recognise, and have recognised adult adoption for decades.
Which is so bizarre!
- and, let’s be honest, civil unions and domestic partnerships were not, at that time,
in any way equal to marriage in the benefits they could bring a couple.
Domestic partnerships, for example, were municipality-based but not recognised by the state and the limited
employment benefits it conveyed were at the complete discretion of the employer.
So, you know: none.
If they wanted.
Sure, cohabitation contracts existed but those only covered your property and was only enforceable
at the dissolution of the relationship.
And you could go down other legal avenues too like “wills, insurance policies, trusts,
health-care proxies, partnership agreements, and durable powers of attorney,”
- But that’s an awful lot of pieces of paper to make up for that one marriage certificate!
Yet the depth of legal rights that accompanied adoption pretty much covered it all.
And again, protected against those homophobic blood relatives just swooping in at the last
moment.
Whilst reciprocal wills and trusts provided an avenue for same-sex couples to leave property
to each other the biggest threat to that was a blood relative claiming ‘undue influence’
(which is going to have that will tied up in court for a long time).
This was not uncommon and to the stigma of homosexuality, wills made by homosexual individuals
were historically more likely to be successfully challenged than wills made by heterosexual
individuals.
Yaaaay….
So, you see, there wasn’t even a guarantee that your same-sex partner would ever receive
the bequeathed property in your will.
Unless, of course, you adopted your life partner right before you died and now- HA!- they’re
your closest living relative so no one else has any claims!
- I would say “try to ignore the fact your romantic partner is now your relative” but
(A) you’re more mature than that, and (B) don’t they become your family when you marry
them anyway?
Sounds great!
What’s the catch?
Well, for one thing, not everyone else involved in adoption loves to see it used this way…
many argued that creating a legal parent-child relationship when there was clearly a sexual
relationship was distorting adoption’s purpose.
But interestingly, courts didn’t always agree (obviously) and noted that creating
a parent-child dynamic had not always been the purpose of adult adoption anyway.
In re Adult Anonymous II, the Supreme Court of New York reversed an order denying a same-sex
couple’s adult adoption noting that the couple, who wished to avoid eviction, had
a pure motivation for entering into the adoption and this was not a manipulation of the adoption
statute as they aimed to create a family- the very purpose of adoption.
Although, here we come to negative number 2: what are the psychological ramifications
of being legally your partner’s child or parent?
Isn’t this just another way of being forced back into the closet?
Even if the court upholds the motivation behind your adoption as being pure… how do your
friends and family react?
Probably not all with support!
Same sex adult adoption is a great sticky plaster over the gaping wound that is a lack
of marriage equality.
- I said ‘is’ because, sure, we have same-sex marraige now but can we really say we have
marriage equality if disabled people loose the benefits they rely on when they get married?
Next downside?
Finality.
Once the adoption had happened, that was it.
There was a small window of time to show undue influence or fraud to the court and if not
then it became irrevocable.
‘How can that be a bad thing’, You ask?
Think about all the people you know who have gotten divorced.
Now imagine they divorce doesn’t exist.
Yeah, I’m sure that world is looking great(!)
Even if the romantic relationship soured and ended, the legal relationship of parent-child
remained.
Even if the adopter part of the couple (the “parent”) disinherits the adoptee (or
“child”) by excluding the adoptee from his or her will, the adoptee will always have
standing to contest the adopter’s will because the adoptee is forever a bona fide child of
the adopter.
Oh yes.
In effect, your ex can follow you around the globe.
Forever.
Fabulous(!)
AND, if once same-sex marriage becomes a thing the person who has adopted you dumps you and
marries someone else then bam their new spouse now gets everything and you are just an estranged
child!
- dun dun dun!
This is seriously very soap opera right now.
Furthermore, downside four, not everyone actually has trouble with their blood relatives in
this scenario- sorry I made it seem that way earlier- but adoption cuts them off entirely
for the adoptee in this situation.
Adult adoption terminates the adoptee’s natural right to inherit from his or her biological
parents and places the adoptee into the adopter’s bloodline.
That person cannot then restore themself back legally into their old family, which is especially
problematic if, as we just mentioned, the relationship ends.
And finally… on the 26th June 2015, the US Supreme Court legalised same-sex marriage
in all 50 states.
Yay!
But…
what if you’d already adopted your life partner?
Oops.
Because there is no coming back from that.
Yes, a catch-22 situation.
People had used adult adoption as a way to emulate same-sex marriage but now that it
was here they couldn’t get unadopted in order to get married!
After all, legally, an adopted father and son cannot marry and neither can they ‘divorce’
each other.
Although many couples who previously went down the adoption route have then sought an
adoption revocation in order to get married.
Why?
Because whilst there is considerable overlap between the benefits offered by adoption and
marriage…
there are some significant economic and legal benefits unique to marriage.
And also: it’s marriage.
People would much rather write ‘my wife’ on a form than ‘my daughter’ when talking
about the person they’re in love with!
Today same-sex marriage is legal in only 32 different countries around the world and whilst
same-sex adult adoption was a work around that happened in the United States, I’m
sure there were others in different countries.
What are some you have heard about?
Thank you so much for watching, I hope you’ve enjoyed this video.
Click the link in the description to watch more Queer History 101 videos and I’ll see
you next time.