Before Marriage Was Possible, Gay People Adopted One Another. Now Sons Need to Become Husbands.

Supporters at the 2013 Twin Cities LGBT Pride Parade. Until recently, adoption was the best way for some gay and lesbian couples to protect their assets. 

Photo by IVY PHOTOS/Shutterstock.com

How’s this for a whipsaw? Even though marriage equality has spread throughout the land, a gay couple in Pennsylvania can’t tie the knot—just because they took advantage of the best way to legally protect themselves before marriage was an option, through adult adoption. A trial court’s recent denial of their petition to undo that adoption highlights a weird anomaly in the law and cries out for a swift and reliable remedy.

Here’s the background: In 2012, Nino Esposito adopted his partner, Drew Bosee. They’d been together for more than 40 years and were looking for some security in retirement. Since they couldn’t marry, adoption was their best bet, since it would greatly reduce the inheritance tax the survivor would have to pay and would shield their estate from potential attack by other relatives. Without adoption, the men would have continued to be legal strangers to each other, dependent on estate-planning documents that can be challenged by unscrupulous relatives.

So Esposito, who’s now 78, adopted the 10-years-younger Bosee. Even just three years ago, the couple had good reason to believe marriage would never be an option for them. After all, Pennsylvania’s so-called Defense of Marriage Act, which barred same-sex marriages, was still in force, and the prospect of nationwide marriage equality seemed far off. What they couldn’t know, of course, is that marriage equality was just around the bend. In 2013, the Supreme Court would strike down the federal Defense of Marriage Act, and then, just two years later, full marriage equality arrived via the court’s decision in Obergefell v. Hodges.

Now Esposito and Bosee would rather marry—that’s the legal relationship that better captures their relationship than their adoption-of-convenience. (What’s more, the legal benefits are greater with marriage than with adoption.) But a trial judge in western Pennsylvania denied their petition to vacate their adoption, saying he didn’t have the authority to do so. He’s wrong, but the case provides a good vehicle for thinking critically about adult adoption.

Although most people know little, if anything, about the practice of adult adoption, it’s permitted in most states. The most common reasons for creating a family in this way is for inheritance purposes, although these adoptions can be done simply because the two parties—or three, in the case of a couple adopting another adult—want the law to affirm a relationship that exists in fact. Adoptions can also protect vulnerable, disabled adults by giving them someone who is legally responsible for making decisions on their behalf. Often these purposes overlap.

Of course, since adoption is governed by state law, baroque variations are the order of the day. Some states say that the adopter must be older than the adoptee, sometimes by a specific number of years, like 15. Some require the consent of the adoptee’s biological parent, if they’re alive. (Here is a good summary of the law.) But all the statutes have the effect of cementing the adoptee’s place within the adopter’s family—with results that minimize or even defeat the inheritance rights of more distant relatives. That’s often the whole point of the action.

But courts have sometimes seen fit to add other requirements not found in the statutes. Notably, they’ve sometimes simply denied adoptions that make them squirm—including the adoption of one gay or lesbian partner by the other. In a well-known case from 1984, Adoption of Robert Paul P., New York’s highest court denied an adult gay adoption because, well, the court thought it was icky. In slightly more technical terms, the justices were concerned that the adoption wasn’t intended to create a filial, father–son relationship, but to protect an intimate same-sex relationship. The law set out no such distinction, and the court didn’t bother to explain why it was denying the couple the only legal recourse they had to protect themselves, given their exclusion from marriage.

Although most courts have read their laws more literally and permitted these adoptions, the New York court’s approach highlights one of the most important features of adoption more generally: Courts have broad discretion in deciding whether to permit an adoption in the first place. That very discretion holds the answer to why the Pennsylvania court got the Esposito–Bosee case wrong, and also why a clear change to the law is needed in these same-sex union cases.

Adoption is a very big deal. It dramatically severs the relationship of the adoptee to his or her family of origin, and it creates a new, and almost always permanent, family. So the law builds in safeguards to make sure that it’s the right move. Although adult and more standard child adoptions provide different safeguards, both are protected by rules that ensure all relevant parties have consented and that no one is misled about the facts.

Because of the discretion that determining these facts requires, judges also have the ability to undo adoptions when the facts compel that decision. There are too many cases, sadly, where an adoption is approved without sufficient vetting of the adoptee’s troubled background. Adoptive parents sometimes try to undo adoptions when they find they’re ill-equipped to deal with violent, special needs, or other challenging kids. In those tragic cases, a court will often grant a petition to unravel the adoption. Courts have also, on occasion, vacated an adoption after the adoptee has reached adulthood.

Those might have been the cases Judge Lawrence J. O’Toole had in mind when he denied Esposito and Bosee’s petition. He wrote that he couldn’t undo the adoption absent some showing of fraud—but that’s much too limited a view of his discretion. Other courts—even within Pennsylvania—have granted identical dissolution requests. In reaching their decisions, they’ve implicitly recognized the broader principles at stake: These adoptions were only pursued as a clever substitute for the marriage licenses these couples couldn’t obtain. Now that the reason for the workaround has disappeared, couples should be able to swap out the substitute legal status for the more legally and socially appropriate one.

When this case gets to the Pennsylvania Supreme Court, the answer should be as clear as the couple’s right to marry: This adoption, and others that were used as a practical stand-in for marriage, should be undone if that’s what the parties request. A legislative fix is tempting, and might even be more reliable in these cases, but it’s probably best not to upset the discretion that better resides with judges who live with these often-tragic cases every day. It’s just too bad that one skittish judge has delayed the wedding celebration that Nino Esposito and Drew Bosee have waited so long for.

The author would like to thank the students in his Family Law class for their collaborative contributions to the arguments made in this piece.