Opinion
No. 89-8-PE-141.
Decided June 24, 1991.
James A. Kiger, for the executor, Clarence A. Knecht.
Lee I. Fisher, Attorney General, and Janyce C. Katz, for the Tax Commissioner.
This matter came before the court on the Notice of Appeal and Exceptions from the determination of the Ohio Tax Commissioner of the tax order in the estate of Rowena W. Cummins. The action was brought by Clarence A. Knecht, the executor of the estate and the principal devisee of Rowena W. Cummins.
The hearing was held, evidence was taken, and briefs were filed by both Clarence A. Knecht and the state of Ohio.
The parents of Clarence A. Knecht moved into a farm owned by the decedent, Rowena W. Cummins, in 1938 when Clarence A. Knecht was nineteen years old. The family farmed the land and lived on the farm. It was at this time that Clarence A. Knecht met the decedent, Rowena W. Cummins. Some time later, the elder Knechts moved to another farm and Clarence stayed and farmed for Cummins. Cummins had no children, and had been widowed for some time. She had lived in the town closest to the farm, Jeffersonville, since 1925.
Knecht continued to farm for Cummins during the remainder of her life. They farmed "on the halves." Knecht married and had children. The family of Clarence A. Knecht developed a very close relationship with Cummins. Since 1966, Knecht had had the key to Cummins's house. Knecht's children had been known to take Cummins to the doctor. The Knechts had Cummins spend holidays with them. Cummins gave the Knecht children each $500 for a high school graduation gift, $500 each for a college graduation gift, and $500 each for wedding gifts. She also made gifts to Knecht in the approximate amount of $90,000 to allow him to purchase a farm. In Cummins's later years, the Knechts performed several services to care for Cummins. When Cummins died, Knecht was in charge of the funeral arrangements.
Item VI of the will of Mrs. Cummins devised "[a]ll the rest, residue and remainder of my estate, consisting of my farm property, * * * to my beloved friends, Clarence Knecht and Mary Agnes Knecht, in fee simple absolute, in equal shares, share and share alike."
Knecht claims that he was the foster child of Cummins and consequently is entitled to the valuation of qualified farm property as set forth in R.C. 5731.011(A)(2), which states: "`Member of decedent's family' means, with respect to any decedent, only his ancestor or lineal descendant, a lineal descendant of any of his grandparents, his spouse, the spouse of any such descendant, or a step child or foster child of the decedent." (Emphasis added.)
This is a case of first impression in Ohio.
A "child" in the state of Ohio was previously defined as any one under the age of twenty-one years, under former R.C. 5153.01(A). The only definition of a foster child is contained in the Ohio Administrative Code Section 5101:2-7-01. This section indicates that a "foster child" is a child who is placed in a family foster home. Under this section an individual operating a foster home is issued a family foster care certificate from the state of Ohio. It is undisputed that Rowena W. Cummins never had such a certificate.
The argument is made that Clarence A. Knecht is the foster child of Rowena W. Cummins under the common law. A foster parent is one who stands in loco parentis relationship to a child, 59 American Jurisprudence 2d (1987), Parent and Child, Sections 75 and 77. That relationship is factual in nature and must be proved. Factors to establish the relationship would include the fact the child was placed in the home of the alleged foster parent, the child was educated by the alleged foster parent, the alleged foster parent had the right to punish the child, the alleged foster parent cared for and maintained the child, the age of the child and the economic dependency of the child. See McManus v. Hinney (1967), 35 Wis.2d 433, 151 N.W.2d 44. In the instant case, none of these factors applied. Any care that was given was by Knecht to Cummins. Knecht never resided in the home of Cummins. Cummins never raised Knecht (he was nineteen years old when he met Cummins). Cummins never educated Knecht, nor did Cummins ever have the right to punish Knecht. Cummins gave money to Knecht to buy a farm, but he cared for and maintained his own family by virtue of his labor.
In some jurisdictions, a relationship between a foster child and a foster parent has been held to become "an equitable adoption." If Knecht had been adopted by Cummins, obviously the tax advantage would apply. However, in Ohio the question of adoption is strictly statutory. In re Adoption of Peters (1961), 113 Ohio App. 173, 17 O.O.2d 141, 177 N.E.2d 541; Belden v. Armstrong (1951), 93 Ohio App. 307, 51 O.O. 62, 113 N.E.2d 693; 46 Ohio Jurisprudence 3d (1983), Family Law, Section 244.
Cummins did not adopt Knecht under the Ohio statutes, nor did she designate him an heir at law under R.C. 2105.15. Had she done this, Knecht would have had the attributes of an adopted child.
The only evidence of family relationship presented between Knecht and Cummins is a change-of-beneficiary form from an insurance company in which Cummins designated Knecht, the beneficiary, as her nephew. This was not a designation of child or son. Knecht testified that he was listed as a son and beneficiary on another insurance policy of Cummins. This designation was never submitted to the court, and the evidence is, at best, self-serving. The evidence is conflicting as to whether Cummins referred to Knecht's children as "grandchildren."
It is abundantly obvious that a closeness existed between Cummins and the family of Clarence A. Knecht. However, this closeness does not make the relationship that of parent and child, adopted parent and adopted child, or foster parent and foster child. The strong bond of love and affection that existed between the decedent and the devisee is to be admired, but in the eyes of the tax law it does not result in a mother-son relationship. Cummins herself correctly characterized this relationship in her will when she devised her farm to her "beloved friends."
The tax laws of the state of Ohio must be narrowly construed and interpreted. The Revised Code section in question, R.C. 5731.011, is somewhat based on the United States Tax Code's definition of a "member of [the] family," Section 2032A(e)(2), Title 26, U.S.Code. However, the federal tax code omits the category of "foster child of the decedent."
For the reason that Clarence A. Knecht was neither the natural child, the adopted child, the stepchild nor the foster child of the decedent, his inheritance of the farm does not qualify for the special farm property value in R.C. 5731.011.
Wherefore, it is hereby ordered, adjudged and decreed that the exceptions from the certificate of determination filed herein are hereby overruled.
Exceptions overruled.