Blended families have become more the norm than the exception, but the law lags a little behind when it comes to accommodating stepchildren. Although some countries, such as Australia, have revamped their estate laws to keep pace with the times, stepchildren rarely enjoy inheritance rights in the United States.
Rights Under a Will
The only way you can ensure that your stepchild will inherit from you is to put an estate plan in place. If you write a will, you can leave your property to anyone you like, although not usually to the exclusion of your spouse. Under elective share laws that exist in common law states, your spouse is entitled to a statutory percentage of your estate if you try to cut her out of your will. In community property states, you can bequeath half the property acquired during your marriage to someone other than your spouse, but 50 percent of this community property rightfully belongs to her, so you have no right to give it to someone else in your will. If your spouse has children, you’re free to include them in your will as beneficiaries if you like, but you’re under no legal obligation to do so. Legally speaking, they’re not your children.
Your stepchildren won’t inherit from you if you neglect to leave a will, either. When you die intestate, without making your final wishes known, state laws determine who gets your property. There's a statutory order of eligible relatives -- and your spouse is always first in line. She typically won’t get all your estate, however, unless you leave no children of your own and – in some states – unless your parents are both deceased. Your spouse is entitled to a percentage of your assets with the remainder of your estate going to your kids. Because her children are not your blood relatives, they’re not in line to inherit from you under the laws of intestate succession. An exception exists if you adopted your spouse’s children, but in this case, they’re legally your children, too, so they would share a portion of your estate with any other children you have. Because state laws can differ a little in the finer details, it's a good idea to check with an estate lawyer in your area to be absolutely sure what rules govern in your jurisdiction.
Challenges to the Will
Your stepchildren generally can’t contest the terms of your will. A person must have standing to challenge a will, which typically means that he’s either mentioned in the document as a beneficiary, or he’s closely related to you and stood to inherit had you not left a will. In either case, he has a bona fide financial interest in your estate. Technically, your stepchildren are not your heirs, so they have no standing to argue in court that you meant to leave them something in your will but did not, such as because you weren’t of sound mind when you wrote your will, or because someone coerced you into writing your will in a certain way.
If your spouse dies without a will, you’ll inherit a significant portion of her estate, dividing it with her children. When you die, you can leave this property in your will to anyone you want, and this may not be the children your spouse left behind. You can leave it to your own children instead, even though an argument might be made that it should rightfully pass to her children. If you die intestate, your spouse’s children lose any rights to the property you inherited from her because they can’t inherit from you under the rules of intestate succession. The flip side to this is that if you predecease your spouse and you leave her all your property, her children might ultimately end up inheriting it from her.
- Wolff & Hislop: If I Die, Will My Step-Child or Adopted Child Inherit From My Estate?
- New York Probate Lawyer Blog: New York Inheritance Laws Do Not Protect Step-Children
- Brian Mekdsy: Are Stepchildren Considered Legal Heirs (and Other Questions About Inheritance and Wills)?
- Nolo: How an Estate is Settled If There Is No Will – Intestate Succession
- Kurt R. Nilson: Step-Children, Beneficiaries
- Legal Information Institute: Elective Share
- Official California Legislative Information: Probate Code Section 100-105
- National Paralegal College: Will Contests
- Photo Credit altrendo images/Stockbyte/Getty Images
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