A question that keeps popping up on some legal question-and-answer sites lately reminds me how fact-sensitive estate planning can be: Are stepchildren legal heirs?
It makes sense that people would be asking this question, given the realities of modern society. Because unless you live under a bridge somewhere, it’s no secret that almost 50 percent of first marriages end in either divorce or separation. It should also not come as a surprise that the number of children born outside of marriage has risen dramatically since the 1970s.
My point is certainly not to criticize or judge the choices people make; indeed, my libertarian instincts lead me to see reality for what it is and to respect the choices people make in a range of circumstances.
But as more and more people enter into second marriages or get married at a later age, the chances are pretty good that at least one spouse will have a child from a previous relationship. And while many of these newly-formed families blend naturally into enduring and loving family units, many don’t. Even for the ones that do, though, the task of estate planning becomes a bit more complicated.
Are stepchildren heirs at law?
Which brings me back to the question at hand: Are your stepchildren your heirs? Or to put it another way: Can stepchildren be heirs when there is no will? The short answer is no. But that doesn’t mean they won’t eventually inherit from a stepparent – at least indirectly, that is.
If there is no will, state law determines who gets your assets
First things first. When someone dies without a will, their assets are distributed according to state law. While these laws differ from state to state, they generally favor the surviving spouse and children (including adopted children). If the deceased was not married and had no children or other descendants, the assets would be distributed to the closest blood relatives.
So stepchildren do not typically inherit from a stepparent under the law when no will is involved.
But what if there is a will?
Here is where it gets complicated.
Let’s say that Harry and Sally got married last year. It is the first marriage for both of them, and Sally just gave birth to their son, Joseph. Sally also has a 14-year-old son, Steve, with her college sweetheart and ex-boyfriend.
Harry, having heard how easy it supposedly is to create a will using a popular online website, gladly forks out the $69 for the do-it-yourself will. “What a bargain,” he later tells Sally. In his will, Harry leaves everything to Sally, but if Sally dies before Harry, then everything goes to Joseph.
Over the next couple of years, Harry and Steve just can’t seem to see eye to eye, and Steve never warms to his new stepfather. Eventually, Steve turns to drugs and alcohol, has some run-ins with the police, drops out of school, and bounces from job to job. Harry makes it clear that he wants nothing to do with Steve, and won’t even acknowledge him at family gatherings.
Sadly, just shy of Harry and Sally’s 10-year wedding anniversary, Harry is involved in a serious car accident and dies on the way to the hospital.
In general, assuming a will is otherwise valid, the will’s directions will be followed
In the situation outlined above, Harry’s assets will be distributed outright to Sally, according to the terms of his will. Once those assets are distributed, they are Sally’s – and Sally’s alone. As the legal owner of those assets, Sally can do with them as she wishes.
So if Sally decides to create a will leaving all of her assets to her children when she dies, guess who stands to inherit a large portion of those assets – including the assets she inherited from Harry.
Can’t you just hear Harry rolling over in his grave? Surely this was not supposed to happen.
Unfortunately, though, this is the result. Harry’s only son, Joseph, will have to share what is left of his father’s estate with his wayward stepbrother, Steve, regardless of what Harry would have preferred.
Obviously this is a hypothetical situation. But it is something that happens all the time, and can be avoided with proper planning.
Again, estate planning is full of traps for the unwary, and is a very fact-sensitive process. If you are looking to provide for a child from a previous marriage or ensure that only your biological children inherit your property, then you should speak with an estate planning attorney and spell out exactly what you intend with regards to your assets.