Woman’s Search for Her Birth Mother Leads to Share of Jell-O Fortune

When reading the linked-to story keep two Florida-law points in mind.

• As I wrote about here, in Florida, adults can be adopted, and for the purpose of intestate succession by or from an adopted person, the adopted person is considered a lineal descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent’s family. 63.042, 732.108.
• I wrote here about a 2005 decision where the 4th DCA held that under Florida law the presumption is that a testator intendedd the term “heirs at law” to be construed under the statutes in existence at the time the Will was executed.

With these points in mind, now consider the following excerpts from Woman’s Search for Her Birth Mother Leads to Share of Jell-O Fortune:

‘ADOPTED OUT’ DAUGHTER

After the trustee told McNabb that she would not be entitled to a share, McNabb hired an attorney to represent her at the Surrogate Court’s settlement of the trusts.

She chose a lawyer randomly from the Genesee County Web site and called his office, hoping to find someone familiar with the Woodward family. Coincidentally, the first attorney she called, Paul S. Boylan, knew the family well.

"Not only do I know about the Woodwards," Boylan told McNabb, "but my father was your grandfather’s attorney."

In December 2005, Monroe County Surrogate Judge Edmund A. Cavalruso ruled that as an "adopted-out" daughter McNabb did not constitute a "descendant" or "child" of Piel and therefore was not a member of the trusts’ class of intended remaindermen or beneficiaries.

On Friday, the 4th Department reversed, effectively awarding McNabb a one-third share of the multimillion-dollar trusts.

The case turned on the dates the trusts were established.

The underlying Surrogate Court decision had relied on a 1985 decision, Matter of Best, 66 NY2d 151, which in turn rested on amendments to the Domestic Relations Law that became effective in 1964 and 1966. Under the amended law, adopted children could no longer inherit "from and through" both their biological and adoptive parents.

But the 4th Department disagreed, holding that Best did not apply as it and the amendments were not in effect when the trusts were established.

By the narrowest of margins — the second trust was executed in 1963, the year the first amendment was passed by the Legislature, but one year before its effective date — the original Domestic Relations Law controlled, the panel determined.

And under the original DRL §117 (as well as Decedent Estate Law §89), McNabb is her mother’s daughter, the panel concluded.

DEL §89 "recognized the status of a nonmarital child as the descendant of his or her mother, albeit through the provision that such child shall inherit only in the event that no ‘lawful issue’ existed," the panel ruled. "In addition, Domestic Relations Law former §117 specifically provided that adopted-out children may inherit from and through their biological as well as their adoptive parents."