| Matter of Fairhurst |
| 2014 NY Slip Op 50600(U) [43 Misc 3d 1214(A)] |
| Decided on March 31, 2014 |
| Sur Ct, Nassau County |
| McCarty, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
In the Matter of
the Administrations of the Estate of Suzanne G. Fairhurst, Deceased.
|
This matter was submitted for decision to determine whether the court will entertain a petition for letters of administration under the doctrine of equitable adoption.
Decedent Suzanne Fairhurst died as a result of an accident on July 19, 2013. As a child, Suzanne resided at an orphanage in Far Rockaway. Petitioner's mother worked at the facility. Petitioner alleges that at some point in time Suzanne lived with his family as a foster child. He contends that the doctrine of equitable adoption should be applied to permit him to receive letters of administration for the purpose of commencing a wrongful death action on behalf of the estate.
The court may find an equitable adoption where there is an agreement for adoption with an agency having the care and custody of a child (Garvin v Aiken, 258 NY 595 [1932]Rodriguez v Morris, 136 Misc 3d 103 [Sur Ct, Suffolk County 1987]). Here, petitioner concedes that there was no agreement for adoption.
Aside from the question as to whether the facts support a finding of an equitable adoption, petitioner lacks standing to receive letters of administration.
An equitably adopted child lacks standing to receive letters in the parent's estate. An equitable adoption does not create a legal adoption of a child but is merely an exercise of the court's equitable powers to permit the child to acquire rights in intestacy based upon an agreement to adopt (Matter of Mazzeo, 95 AD2d 91 [3d Dept 1983]). Likewise, the doctrine does not create a legal relationship between the equitably adopted child and the heirs of the adoptive parent (Matter of Riggs, 109 Misc 2d 644 [Sur Ct, New York County1981]).
The doctrine of equitable adoption is applied for the benefit of the child. Thus, the weight of authority is that the "parent" cannot commence a wrongful death action on behalf of the child (see Modern Status of Law as to Equitable Adoption by Estoppel, 122 ALR5th 552 [2004]). It naturally follows that the heirs of the deceased "parent" lack standing to commence a wrongful death action.
Accordingly, the court declines to entertain the petition for letters of administration.
Dated: March 31, 2014
EDWARD W. McCARTY III
Judge of the
Surrogate' s Court