Joel Gaffney

Document Type

Article

Publication Date

3-2026

Keywords

adoption, adopted children, heirs, parent-child relationship, wills, intestacy law, intestacy, Inheritance Code

Abstract

Americans are steadily moving away from the nuclear family towards an understanding of family less defined by shared DNA or last names. This is especially prominent in the way children are raised. More children are being born to single or unmarried parents, and a fair number of children are being raised by nonparents. Such nonparental caretaking can manifest as “informal adoption,” where there is no biological or legal parent-child relationship but there is a functional parent-child relationship. Certain areas of the law sometimes struggle to keep up with these changes in the meaning society assigns to “family.” Statutory probate law is no exception. Wills and other testamentary instruments grant wide freedom to gift property to the people testators care about when they die, and sometimes those people are not the testator’s nearest blood relatives. Intestacy law, which governs disposition when there is no testamentary instrument, attempts to approximate the testamentary scheme the decedent would most likely have made. Unfortunately, intestacy statutes usually do not consider the possibility of nontraditional family. So, the law reverts to assuming decedents were closest with, and thus would give their property to, their most immediate biological or legal relatives. When informal adoption is at play though, such an outcome can be contrary to the nonparents’ most likely testamentary disposition.

Children raised in nontraditional families deserve a place in probate law, especially those who are “informally adopted.” Nonparents raise these children as their own and, for all practical intents and purposes, fulfill a true parental role. These relationships usually foster close emotional ties, so if the nonparents wrote a will, they would likely leave the child a testamentary gift on par with that of a legal child. Arkansas’s intestacy laws fall short of effectuating this. Many states have recognized inheritance rights that arise from such a relationship, but Arkansas has yet to come up with a real solution. It is far past time that the State provides these children with inheritance rights that, first, legitimize their family relationships, and second, better approximate the likely testamentary schemes of informally adoptive parents.

Part II of this Note explains what constitutes informal adoption and some relevant principles of American probate law. Part III analyzes why denial of inheritance for informal adoptees in Arkansas is inconsistent with the Arkansas Inheritance Code’s (“Inheritance Code”) intent to approximate most likely testamentary disposition. Part IV proposes solving this problem with equitable adoption by estoppel, a de facto parentage statute, or a statutory extension of Arkansas’s in loco parentis doctrine to the Inheritance Code. Part V concludes with a challenge to both the Arkansas Judiciary and the General Assembly to finally address this glaring problem in state probate law.

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