How To Leave Gifts To Stepchildren

  • Nov 29 2017

Today, blended families have become increasingly common, and many individuals have step-children, that is, children of a spouse or partner. In situations where step-children have not been legally adopted, however, they may not have a legal right to an inheritance from a step-parent.  However, California has a statute wherein a stepchild is to be treated as an intestate heir of the deceased stepparent so long as two requirements are met: (1) the stepparent relationship began during the stepchild’s minority and continued to the stepparent’s death, and (2) there is clear and convincing evidence that the stepparent would have adopted the child but for some legal impediment (such as the non-consent of some interested party). Cal. Prob. Code § 6454.  Leaving the issue of a step-child’s right to inheritance to statute is not the most efficient way to proceed.  It may create claims of pretermission (unintentionally left out of the will or trust and thus allowing the step-child to claim a share of the estate) or other litigation actions.

For those who wish to leave step-children part of their estate, it is best to include them in an estate plan, or if they are not to receive a share of the estate, to add clear language of disinheritance.

The easiest way to leave gifts to step-children is to name them in a will or trust. As with any other gift, they can be given a percentage of the estate, or specific gifts. If there are other children involved, it is important to avoid confusion by naming each child and step-child by using their individual names, rather than terms such as “descendants,” “heirs,” or “children.”

There are also a number of estate planning tools that can be utilized to include step-children in an inheritance. If the objective is to avoid probate, for example, a revocable living trust can be established in which a step-child is named as a beneficiary. Moreover, it may be necessary to provide for a disabled step-child who is eligible for public benefits by establishing a special needs trust. Lastly, a step-child can also be named as a beneficiary in a life insurance policy or a pay-on-death financial account.

While there is no legal obligation to leave step-children an inheritance, it may be the best choice for those who have a close relationship, or played a significant role, in raising them. However, this will reduce the amount of assets available to other children and beneficiaries. Because blended family relationships are complex and subject to emotional challenges, it is important to explain these decisions with all family members.

By engaging in an open and honest dialogue, you can minimize the potential for strife and the possibility of a will contest. In particular, it is important to clarify why you gave each recipient a gift, the selection of your executor, and your thoughts about the family.  Lastly, you are well advised to engage the services of an estate planning attorney who can help ensure your wishes regarding step-children are carried out.

If you are considering establishing an estate plan, whether or not you have step-children, the attorneys at Schneiders & Associates, L.L.P. can help! Please contact us to complete an estate planning questionnaire and schedule a no fee consultation.

By: Roy Schneider, Esq. 

Posted in: Estate Planning


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