Wills and Rights as a StepchildBy Ronna L. DeLoe, Esq.
Wills and Rights as a StepchildBy Ronna L. DeLoe, Esq.
The inheritance rights of stepchildren are not as clear cut as those of biological children. While wills and estates are often complicated, they're made all the more difficult when it comes to blended families.
If you have biological children and a stepchild, and you want to include the stepchild in your estate, you need to take specific steps to do so. On the other hand, if you want to exclude them, you can leave them out of your estate, and generally, the laws of the state will exclude them. Still, there are exceptions to their exclusion.
Either way, the inclusion or exclusion of your stepchild requires extra consideration when making your estate plan. Find out everything you need to take into account.
Passing Away Without a Will
If you pass away without a will, that's called dying intestate, and the laws of intestate succession of your state apply. Each state has laws stating who inherits under intestate succession laws. The people who inherit from you are the beneficiaries.
In almost every state, stepchildren do not inherit from you without them being named in a will, trust, or other legal instruments. In general, the people who are left out of intestate succession laws include:
- Foster children
- Children you only had custody or guardianship of but had no biological connection
- Children you raised and did not adopt, and there's no biological connection
Because these people would likely be left out of your estate, you'd have to specifically include them if you want them to inherit from you.
How a Stepchild Can Inherit From You
If you want your stepchild to inherit from you, you must specifically name them in your will, or trust. If you have biological children and a stepchild, it's not enough to state "children" in your will or trust, as that leaves out the stepchild. To include the stepchild, you must list their name and relationship to you as a stepchild. If you already have a will but haven't included your stepchild, you must update your will to include them by name.
Another way to include your stepchild is to adopt the stepchild. Adopted children are considered your children, so adopting a stepchild is another way to ensure that your stepchild inherits from you. In that case, you can name your "children" in your will or trust, and that will include your adopted child, but you are much safer naming the specific children, including the adopted child, to make sure every child you want as a beneficiary will inherit from you. This is sometimes done improperly, so it's important to have an experienced estate attorney draft wills and trusts for you.
In some states, stepchildren could inherit from you if they apply to probate court. In Washington, for example, a stepchild could possibly inherit from you if you passed away without a will, and there are no heirs to leave your estate to other than your stepchild. Likewise, in California, a stepchild could inherit from you if you died without a will only under specific circumstances, which require:
- The stepchild had a relationship with you during the child's minority up until the time of your passing, and
- There is "clear and convincing evidence" that you were trying to adopt the child but couldn't do so for legal reasons beyond your control
Rights of a Stepchild to Inherit
While a stepchild generally does not have the right to inherit from you without being specifically named in a will, or trust, you can set up the will or trust so that you include the stepchild by name. You can also arrange to have the stepchild named as a beneficiary of certain plans or policies, such as:
- Life insurance
- Retirement accounts
- Pension plans
You can also name the stepchild as a joint owner and inherit the following when you pass:
- Savings and checking accounts
- Titled property, such as real estate and vehicles
- Any other property you list and name the stepchild as the beneficiary
Once you've named the stepchild as a beneficiary, the stepchild has the right to claim the inheritance. If the stepchild is the joint owner with you, then in most states, the stepchild would inherit the property as the surviving owner. State laws vary, so consult an attorney to ensure that your stepchild inherits as a joint owner with the right of survivorship.
Stepchild Inheriting From the Biological Parent Only
If you're the biological parent and you pass away without a will, generally, your child will inherit from you unless you have a living spouse. However, if your child is the stepchild of your spouse and was not adopted by them, and your spouse dies first, leaving you their estate, it's possible for your child—your spouse's stepchild—to eventually inherit from your spouse's estate when you pass away.
If your spouse doesn't want your child to inherit from their estate, or if you should pass first and you don't want your stepchild to inherit from your estate through your spouse, you can arrange to have a bypass or marital trust made. A bypass or marital trust, depending on how it's set up, allows the surviving spouse to use the deceased spouse's property during the survivor's lifetime. Upon the remaining spouse's death, the trustee of the trust distributes the property according to the stepparent's wishes. An attorney who understands how to create these trusts should set this up for you.
While a stepchild usually doesn't have any rights as a beneficiary, there are ways to specifically include them, just as there are ways to exclude them specifically. Consult an estate attorney to help you distribute your estate the way you want.
This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.