Blog Post | 107 KY. L. J. ONLINE | September 27, 2018
A Brief History of Pre-Obergefell Same-Sex Estate Planning: Adult Partner Adoption
Kyle S. Schroader
American legal system values marriage and rewards those who enter into the institution.
This is especially true in the world of estate planning and taxes. Within that
world, marriage grants participants legal benefits like eligibility for estate
tax marital deductions, access to survivor’s benefits through pension plans, the
ability to freely visit spouses in a hospital, and favorable intestate inheritance
couples, marriage and the estate planning benefits listed above were not easily
accessible until the Supreme Court’s 2015 legalization of same-sex marriage in Obergefell v. Hodges.With the retirement of Anthony
Kennedy, the Supreme Court’s swing vote,
the holding of Obergefell has
naturally begun to feel less secure. Although it is unlikely that Obergefell will ever be overturned
completely by the Supreme Court, a conservative justice will undeniably move
the Court to the right.
This potential nominee could help chip away at LGBTQ+ rights and could, in
turn, affect same-sex estate planning. Until 2015, estate planning for same-sex
couples often involved legal run-arounds to effectively safeguard each partner’s
The little-known history of adult partner adoptions, one such pre-Obergefell same-sex estate planning technique,
serves as a reminder of all that is at stake in the current political climate.
in the early 1980s, some same-sex couples opted to have one partner adopt the
other as a way to circumvent inheritance taxes and to guarantee hospital
visitation rights, among other benefits.
These relationships differed from standard parent-child adoptions because the
two adults were partners; the purpose of the adoption was solely to gain legal benefits,
not to change the status or power dynamic of the relationship itself.
The adoption process in most states was fairly simple, but often forced the
adopted partner to legally sever ties with his or her birth family (simultaneously
cutting off his or her rights to intestate inheritance from them).
These adoptions were often kept secret from outsiders and were discussed even
less frequently outside of the LGBTQ+ community.
This secrecy was for good reason. Not only did this new relationship potentially
create criminal incest liability, but it also created a new, awkward
relationship dynamic that was often difficult to discuss with outsiders.
lens of 2018, the necessity of taking such extremes to gain legal dispositive
protection is not easily comprehended. But it is fact that throughout most of
American history, including the early 1980s when the practice of adult partner
adoption was born, courts across the country were openly opposed to
This sentiment did not escape the probate courtroom. For example, in In re Kaufmann’s Will, Robert Kaufmann,
a multimillionaire and heir to the Kay’s Jewelry fortune, was in a same-sex
relationship with Walter Weiss, who also maintained Kaufmann’s finances.
Prior to his death, Kaufmann updated his will to leave Weiss the majority of
Upon his death, however, Kaufmann’s family challenged the will.
The court ruled that Weiss held a dominant position over Kauffmann and, coupled
with the court’s finding of “suspicious circumstances” surrounding the
relationship and updated dispositive wishes, determined that the will was
invalid and could not be enforced.
Scholars often cite to Kaufmann as an example of the negative
impact that gender norms and homophobia had on LGBTQ+ estate planning during
this time. It
was the prevalence of cases around the country like Kaufmann that made it necessary for members of the LGBTQ+ community
to utilize alternative estate planning techniques like adult partner adoption.
the post-Obergefell world, same-sex
couples no longer have to use adult partner adoption as an estate planning
technique. As a result of the legalization of same-sex marriage, the majority
of these adoptions have been annulled or are current in the process of
the struggles of the 20th and early 21st century fade, however, it is necessary
for future generations to remember the struggles of the past. For same-sex
couples in the 1980s, adult adoption was one solution to the denial of even the
most basic of legal rights: deciding one’s own disposition. While same-sex
marriage has made estate planning more secure than ever before for members of
the LGBTQ+ community, the history of the community’s fight to plan their own
estates and the efforts to get to this moment in time should not be forgotten.
 Staff Editor, Kentucky Law Journal, Volume 107; J.D. Candidate, University of
Kentucky College of Law (2020).
 Kate Ashford, 11 Things You Never Thought Of When You Decided Not To Get Married, Forbes (Sept. 26, 2014, 8:00 AM), https://www.forbes.com/sites/kateashford/2014/09/26/deciding-not-to-get-married/#69681536edf3.
 135 S. Ct. 2584 (2015).
 Kent Greenfield and Adam Winkler, Without Kennedy, the Future of Gay Rights is Fragile, N.Y. Times (June 28, 2018), https://www.nytimes.com/2018/06/28/opinion/kennedy-gay-rights-same-sex-marriage.html.
L. Snodgrass, Creating Family Without
Marriage: The Advantages and
Disadvantages of Adult Adoption Among Gay and Lesbian Partners, 36 Brandeis
J. Fam. L. 75, 75 (1997).
 Elon Green, The Lost History of Gay Adult Adoption, N.Y. Times (Oct. 19, 2015,
9:53 PM), https://www.nytimes.com/2015/10/19/magazine/the-lost-history-of-gay-adult-adoption.html.
 Peter N. Fowler, Adult Adoption: A “New” Legal Tool for Lesbians and Gay Men, 14 Golden Gate U. L. Rev. 667, 669 (1984).
 Id. at 678.
 Green, supra note 7.
 See Fowler, supra note 8,
at 669; Green, supra note 7.
 See, e.g., Bowers v. Hardwick, 394 U.S. 557 (1986).
 247 N.Y.S.2d 664, 666, 670 (1964).
 Id. at 667.
 Id. at 665–66, 670–71.
 Id. at 682–86.
generally Robert H
Stikoff & Jesse Dukeminier, Wills, Trusts, and Estates 294–95 (Wolters
Kluwer, 10th ed. 2017).
 C. Brian Smith, Before Gay Marriage Was an Option, These Gay Couples Adopted Each Other, Narratively (Aug. 17, 2016), http://narrative.ly/before-marriage-was-an-option-these-gay-couples-adopted-each-other/.
* Featured image by Ken Mayer licensed under CC BY-SA 2.0.