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Are Stepchildren Treated The Same As Children If You Don’t Make a Will or Trust?

According to the most recent census 40% of families in the US are blended, with at least one partner having a child from a previous relationship. In many cases, stepparents treat their stepchildren as their own. Perhaps they have been a part of each other’s lives from a young age, or perhaps the stepchild was already an adult when the stepparent arrived on the scene. I have worked with numerous families where the bond between stepparent and stepchild is unbreakable. But what does the law say? If you die without a will leaving behind natural children and stepchildren, all of whom you adore, will the stepchildren be entitled to inherit from you? To the surprise of many, the answer is that except in very limited circumstances, stepchildren will not inherit from a stepparent who died without a will or trust.

The typical, and very sad, inquiry that we receive is from someone in their 40s or 50s whose stepfather has just died. The stepfather had been married to the caller’s mother for many years. After the caller’s mother died, the house that mother and stepfather owned together became the sole property of the stepfather. One or more of the stepchildren have been living in the house. The reason the stepson is calling us is because his stepfather’s brother, a man no one in the family has heard from in decades, has opened probate and is claiming to be entitled to inherit the house on the basis that he is stepfather’s sole surviving blood relative. The stepson is invariably devastated when we tell him there is nothing we can do.

When a person dies without a will in California, the laws of intestacy kick in. These rules are complex but, in general, if the decedent had a spouse and and all property is community property, the spouse will inherit everything. If the decedent also had separate property, the spouse will inherit some or all of that separate property, depending on whether the decedent also had children, parents or siblings living at the time of his death. How that separate property is divided between the surviving spouse and the surviving blood relatives will be determined based on the number of blood relatives there are, amongst other things. If the decedent had no spouse but did have children, the children will inherit equally. Importantly, the definition of children includes adopted children, but not stepchildren.

Are there any circumstances in which a stepchild could inherit? In certain circumstances where the decedent passed away without any blood relatives, it is possible for the stepchildren to inherit. In addition, stepchildren may also inherit where:

  • The relationship between the stepchild and the stepparent began when the stepchild was still very young, and they continued that relationship throughout their lifetimes; and
  • The stepparent intended to adopt the stepchild but faced legal challenges, such as pushback from the child’s other biological parent.

The evidentiary burden is almost insurmountable here, particularly in the case of the second bullet listed above. That is why, for all intents and purposes, stepchildren will not inherit from their stepparent, even if their relationship was akin to parent and child.

Because of the hard line taken by the law in this area, the only way to ensure that your stepchildren will inherit from you is to make an estate plan that includes them. Making a will would ensure that the people you choose will inherit your assets. Creating a revocable trust would have the same effect, but with the added benefit of allowing the family left behind to avoid having to deal with the probate court process. If you don’t make your own plan, the State of California will impose its plan on your family. As you can see, that may well lead to a result that you would never have chosen.

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