Uniform Probate Code

Abstract: Charles P. Kindregan, Jr. and Maureen McBrien, ASSISTED REPRODUCTIVE TECHNOLOGY: A LAWYER’S GUIDE TO EMERGING LAW AND SCIENCE--2d, is published by the American Bar Association (2011). Kindregan is Professor of Law at Suffolk University Law School and McBrien is an Adjunct Professor at Suffolk and a member of the law firm of Todd and Weld in Boston. This is a greatly expanded study of the gradually evolving law in the multi-billion dollar business of conceiving children by medical means rather than sexual intercourse. The field initially expanded to deal with the problem of infertility, but in the last decade the issue of parentage in same-sex unions has brought numerous disputes over children conceived by assisted reproduction into the courts. While the law governing assisted reproduction is still largely undefined, the uniform laws governing inheritance (Uniform Probate Code) and parentage (Uniform Parentage Act) as well as the ABA Model Act Governing Assisted Reproductive Technology have opened the potential of legislative action. This new study by Kindregan and McBrien surveys the law on assisted reproduction on everything from the law governing the older intrauterine insemination procedures, to contemporary in vitro fertilization and surrogate parenting, to the potential for human reproductive cloning. It includes state-by-state and international approaches to the topic, providing analysis of legal proposals and a treatment of contract solutions. 425 pages; indexed. The Table of Contents, Introduction and Chapter 1 can be downloaded.

Abstract: As the American population ages, the need for long-term care, already great, will become even greater. Some of this care is paid for by government programs, such as Medicaid, and by individual long-term care insurance policies. But the combination of the public fisc and private insurance are, and will continue to be, insufficient to pay for all of the care our seniors and adults with disabilities need. The provision of care in a family residence by one or more family members is an important component of our health care delivery system and must be supported and encouraged by public policy and law. As experts in the law of estate planning and health care, respectively, we address in this Article the following question: How might the American law of succession realistically recognize, support, and promote family caregiving? Our answer is a pragmatic proposal that can be adopted into the Uniform Probate Code (UPC). We propose a modified elective share for a family member who has provided the decedent with substantial uncompensated care in a family residence. (In this context, “family member” excludes the decedent’s surviving spouse, because the UPC already provides a spousal share.) Our approach contrasts with the prevailing law in the U.S., which treats personal services rendered by family members as gratuitous, hence not compensable. The scope and amount of the caregiver’s elective share can be structured by way of analogy to the surviving spouse’s elective share, though with important differences, as we discuss herein.

Abstract: INTRODUCTION Since the nineteenth century, adoption has been used in the United States to create legally recognized parent-child relationships between consenting adults.1 While adult adoption has grown in prevalence in the United States,2 some Americans are either unaware of its availability or underestimate its use in our legal system. In reality, there are several reasons why an adult would choose to adopt another adult, and the practice is not at all uncommon.3 This Comment explores adult adoption and the corresponding rights afforded to adult adoptees under the intestate succession and class gift provisions of the Uniform Probate Code ("UPC").4 The Comment assesses the advantages and disadvantages of adopting the UPC's suggested provisions and proposes a modification to the UPC that treats adult adoptees consistently in both the class gift and intestacy contexts: as natural children for transfers directly from adoptive parents but not for transfers from third parties. As discussed below, such a statutory framework is both consistent with the principles of estate law and is sound public policy. The motivations behind an adult adoption are often numerous and include the recognition of familial ties, enjoyment of employment benefits, and establishment of inheritance rights.5 For these reasons, adult adoption has been used by same-sex couples to obtain some of the rights denied to them by the unavailability of marriage.6 This Comment seeks a happy medium that ensures the protection of the important benefits that lie outside of the inheritance realm, while avoiding the potential manipulation of estate law. It concludes that adult adoption petitions should be broadly granted, with legislatures resolving intestacy and class gift issues through clear and comprehensive inheritance statutes. Part II of this Comment explores the history and rationale behind adult adoption and assesses its statutory availability across states. Part III explains the treatment of adult adoptees under UPC sections 2-155 and 2-705 and determines that while the UPC provision on class gifts is consistent with decedent intent and social policy, the intestacy provision falls short. Part IV proposes a statutory scheme that adopts the UPC class gift provision, but modifies the UPC intestacy section to limit inheritance by an adult adoptee through an adoptive parent to those situations where a parent- child relationship exists. Part IV also suggests a reciprocal beneficiary program as a way for states to allow parties to preserve inheritance rights without resorting to adult adoption. I. BACKGROUND A. History of Adoption Historically, adoption's primary uses were to perpetuate familial lineage and designate heirs to fulfill religious obligations.7 The intended beneficiary of the adoption was the adopter rather than the adoptee.8 When adoption first emerged in the United States, it was an informal process used to relieve the government of a ward and provide an economic benefit to the adoptive parents.9 The state of the adoptive home was not a consideration, and the children were often used as cheap labor.10 It was not until the nineteenth century that the primary concern in minor adoptions shifted from the adopter's potential benefits to the best interests of the child.11 Adoption did not exist under English common law and its formal acceptance and regulation in the United States has been exclusively by statute.12 In the mid-nineteenth century, general adoption legislation was introduced as part of the growing call for social welfare reform.13 While some of the enacted statutes provided for the adoption of "children,"14 several state legislatures also enacted separate provisions for the adoption of adults.15 At the same time, the broad and ambiguous language of the general adoption provisions in other states was interpreted to extend to adoptees of any age.16 B. Why Adopt an Adult? While adult adoption gained recognition at around the same time as minor adoption, the rationales for its use were (and remain) largely different. …