In O’Neil v. Wilkes, 439 S.E.2d. 490 (Ga. 1994), the Georgia Supreme Court rejected virtual adoption. That case turned on the fact that the child’s relatives who placed the child with a family that “virtually adopted” the child did not have the legal authority to enter into a contract for the child’s adoption. Thus, it followed that there could be no virtual adoption. In a strong dissent, Justice Sears set forth a basis for establishing virtual adoption. Under Justice Sears’ theory, the virtual adoption was a contract. Spears argued that, in this case, the child had fully performed the contract, making it enforceable regardless of the statute of frauds. The dissent held that “where a child has fully performed the alleged contract over a course of many years or lifetime and can sufficiently establish the existence of the contract to adopt, equity should enforce the contract over the objection of the adopting parents’ heirs that the contract is unenforceable because the person who consented to the adoption did not have the legal authority to do so.” Id. at 493. The virtual adoption here was defended on an estoppel theory. The dissent outlines also the shortcomings of basing equitable adoption on a contract theory and stated a preference for a broader equitable basis for virtual adoption.
In Board of Education v. Browning, 333 Md. 281 (1994), the Court of Appeals upheld virtual adoption in Maryland. The primary grounds were based in contract theory. In Browning, however, the issue was not whether the child could inherit from the adoptive parent but whether the child could inherit through the adoptive parent. The court held that virtual adoption was not a true adoption but simply a mechanism to enforce an agreement between the child and the adopting parent based on estoppel and other equitable principals. It was not, however, an actual adoption (which is solely governed by the statute). It was held in Browning that virtual adoption was not a basis for upholding inheritance through the adoptive parent. Because there was no other heir, the estate escheated to the Board of Education. Judge Eldridge filed a spirited dissent stating that the strong presumption against escheat should have triggered the opposite result.
In McGarvey v. State, 311 Md. 233 (1987), the court addressed whether virtual adoption bound the state to accept the smaller inheritance tax (1% at that time) that governed a transfer from parent to child or whether the collateral tax rate, which covers a transfer to a non-family member, applies. The Court of Appeals held that virtual adoption was a private action enforcing rights between the child and the decedent. It did not effect the tax rate; the tax rate was deemed something that would only be impacted by a formal adoption.
