Summary: Today, blended families are
more common than ever. These families may include parents who were widowers,
widows or divorcees. In many of these families, a stepparent's relationship
with his/her stepchildren may become very close, such that the stepparent
desires to include the stepchildren in his/her estate plan. Whether you have
stepchildren you want to ensure get a portion of your wealth, or you have
stepchildren you want to receive nothing, it is important to ensure that you
have a valid estate plan in place, so that you can be sure that your objectives
are achieved and you leave the legacy that you desire.
Here, in 2016, the legal standard of
"no-fault" is the law in each of the states. California was the first
to pass its no-fault divorce law, nearly a half-century ago. With the expansion
of these laws has come an increase in divorces among American couples. With the
substantial uptick in the percentage of couples whose marriages end in divorce
has also come an increase in blended families. In many of these families, a
stepparent may come to share a very close relationship with his/her
stepchildren, eventually becoming as much of a parent-figure as the children's
biological parents. In the classic TV show, "The Brady Bunch," Mike
Brady's sons did not know Mike's second wife as "Stepmom" or
"Carol." She was just "Mom."
However, the law does not always see things
the same way. Generally speaking, unless you have initiated and completed the
process of legally adopting your stepchildren, they have no relation to you
under the law in most states. This can have a significant impact on your estate
if you die with no valid estate plan in place. There is some variation from
state to state in the intestacy laws regarding stepchildren and their right to
inherit from stepparents. A few states, like Iowa, Kentucky, Arkansas and
Missouri (among others,) say that stepchildren can inherit from a stepparent
who dies intestate (meaning dies without an estate plan,) but only if the
stepparent dies with no surviving relatives of any kind that can be located,
and the only other option (besides distributing the estate to the stepchildren)
would be allowing the estate to go (or "escheat") to the state
treasury.
Others states, like California, say that
a stepchild can take from a stepparent's intestate estate if the stepparent
desired to adopt the stepchild but some legal barrier preventing the process
from being completed. Very recently, a Michigan court case went even further.
In that case, the deceased father died with a will, but the court declared that
document to be a forgery. As a result, the court declared the man to have died
with no plan, and distributed his intestate estate three ways, between a son, a
daughter and the man's stepson. In this case, the stepson became an heir solely
based upon his having formed a parent-child relationship with the stepfather
before age 18 and continuing that relationship until the stepfather died.
What does all this legal language mean
for you? It means that, for the vast majority of people, it is best to get an
estate of your own choosing put into place, and not leave your legacy up to the
laws of your state of residence. If you have stepchildren, there are two
distinct scenarios where allowing your wealth to be distributed according to
intestate law can go very wrong. The first situation is if you have
stepchildren with whom you are close and whom you want to include in the
distribution of your wealth. If you live in one of the majority of states that
does not recognize unadopted stepchildren as relatives, then they will get
nothing from your assets unless you get an estate plan with a will (or will and
living trust) that dictates who you want your beneficiaries to be. With a
properly drafted and executed will or living trust, you can ensure that your
stepchildren will get the fair share of your assets that you want them to have.
Alternately, you may have stepchildren
with whom you're not close and whom you don't want to receive anything. While
most intestacy laws say unadopted stepchildren get nothing, laws can change.
And you may already live in a state that recognizes unadopted stepchildren as
relatives. Again, the best way to make sure that your goals are achieved is to
ensure that you have a validly drafted and executed estate plan in place. The
law says that you can disinherit anyone except your surviving spouse. Whether
someone is a child or stepchild, you can leave them nothing as long as it is
properly spelled out in a valid estate plan.
This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com.
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