The North Carolina Supreme Court recently recognized the doctrine of equitable adoption. In Lankford v. Wright, 122 N.C. App. 746, 472 S.E. 2nd 31 (1996), Reversed and Remanded as Lankford v. White, 347 N.C. 115, 489 S.E. 2d 604 (1997). The Supreme Court held that a foster child could inherit under intestacy from her foster mother. The court held that under limited circumstances equitable adoption is necessary to protect the interest of a person who was supposed to have been adopted as a child but whose adoptive parents failed to undertake the legal steps necessary to formally accomplish the adoption. Equitable adoption does not confer the incidents of formal statutory adoption; rather, it merely confers rights of inheritance upon the foster child in the event of intestacy of the foster parents.

The elements necessary to establish the existence of equitable adoption are:

  1. an express or implied agreement to adopt the child.
  2. reliance on that agreement.
  3. performance by the natural parents of the child in giving up custody.
  4. performance by the child in living in the home of the foster parents and acting as their child.
  5. partial performance by the foster parents in taking the child into their home and treating the child as their own, and
  6. the intestacy of the foster parents.

The required elements clearly limit the number of equitable adoption situations which will occur.

The Court's holding does raise new issues when determining the proper heirs of an intestate. This may prove especially important when real property is being conveyed out of an estate or by heirs of an intestate.