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Providing for Stepchildren in the Estate

by Chad E. Nelson, Esq.

Most people understand the necessity of having a Last Will and Testament, even if some of this understanding is at times misinformed. Wills serve as a person’s written instructions as to where property is to pass upon death. Wills also dictate whom the person would like to be responsible for administering his or her estate, as well as who the person would like to serve as guardian or trustee over his or her minor children if there is no surviving spouse.

We often hear that without a Will, a person’s property will automatically pass to the state. This is also partially incorrect. All states have what are called intestacy laws, which are laws that govern the disposition of a person’s property where no Will exists. Intestacy laws make baseline assumptions about where the person would have wanted his or her property to go, had he or she created a Will. These assumptions provide that where there is no Will, property passes to a surviving spouse and living children. The proportion of division between spouse and children varies from state to state. In the event the decedent dies without a spouse or children, intestacy laws provide for other more remote family members, or “heirs at law”, to be the inheritors of such property, including parents, grandparents, siblings, grandchildren and cousins. Only where no heirs at law can be ascertained does property “escheat” to the state. This is very rare.

The waters become muddied, however, for individuals dying without a Will who are survived by stepchildren. Traditionally, intestacy laws do not provide for persons who are not related by blood to the decedent. This clearly presents a problem for people passing away with stepchildren for whom they intended to provide. Only where stepchildren have actually been adopted by the stepparent do they become heirs at law for purposes of intestacy. A select few states, among them California and Washington, have made attempts to address the issue of stepchildren and intestacy. So while one can rely on intestacy laws to provide a default method of distribution of the estate, intestacy will not address family-specific issues such as stepchildren, or other more complicated legal issues, such as children who the decedent would not have wanted to inherit property. This is where a Will or Trust becomes extremely important. These documents address issues such as the provision for non-adopted stepchildren, and children or spouses for whom the decedent wishes to provide for, but only under specific conditions.

There is another important distinction between adopted and non-adopted stepchildren that comes into play during the probate process. In both Rhode Island and Massachusetts, as in most other states, a portion of the decedent’s estate may be used, during the period of administration, to support surviving family members who relied on the decedent during the decedent’s lifetime. These statutory “allowances” for family members of decedents generally take precedence over other creditor claims and expenses of the estate, but again, are usually unavailable for non-family members. At least in Rhode Island, some probate courts have shown to be flexible on this matter, issuing orders for support of non-spousal partners and minor children not related by blood. Still, to rely on the understanding and flexibility of the court is a poor alternative to proper planning that comes with a visit to a qualified attorney.

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