Families come in all shapes and sizes – which means estate planning is not one-size-fits-all. When planning for your family’s future, it’s important to understand that depending on your situation, you may require different estate planning considerations. If you have stepchildren or are unmarried with biological children, you and your partner should take the time to consider your options.
Treated as equals
Adopted children and biological children are treated as equals in most situations for estate planning purposes. Further, if both your child and step-child are written into your parent’s will, they will equally be regarded as “grandchildren”. However, each state’s intestate succession laws will help determine who inherits property in the absence of a will.
No inheritance rights unless adopted
Stepchildren who are not legally adopted by their parents’ new spouse generally don’t have any inheritance rights. If you have stepchildren and want them to share in your estate, you should consider either adoption or amending your estate plan to expressly provide for them. And while adoption allows for ease of inheritance and estate planning, it also gives adoptive parents the legal rights of a biological parent during their life.
One thing to consider before adopting stepchildren, though, is the potential effect on their ability to inherit from (or through) their other biological parent’s relatives. In most states, when a child is adopted by a stepparent, the adoption decree severs the parent-child relationship with the other biological parent and his or her family. That means the child may not be able to inherit from that biological parent’s branch of the family — and vice versa — through intestate succession.
Second-parent adoption considerations
A growing minority of states now permit second-parent adoptions, in which an unmarried person adopts his or her partner’s biological or adopted children without terminating the partner’s parental rights. However, in states that recognize second-parent adoptions, their intestate succession laws may not provide for a child to inherit from the “second parent.”
For unmarried couples who can’t obtain a second-parent adoption, or choose not to, estate planning is especially critical. If they want the “nonparent” to have custody of the child in the event of the “parent” passing away or becoming incapacitated additional planning needs to be considered. You should also seek more information if the “nonparent” wants the child to inherit their estate.
The parent should consider using a power of attorney for parental authority and appointing the “nonparent” as a guardian to ensure that he or she can act on the child’s behalf. Both partners should also amend their wills. The parent’s will(s) should name his or her partner as the child’s guardian, and the “nonparent’s” will should spell out any property to be inherited by the child. It should be noted that custody, guardianship and support are almost always within the province of a court for determination in any controversy.
If you have any further questions about how to address adopted children or stepchildren in your estate planning, please contact Jason Smolen at jdsmolen@smolenplevy.com or Daniel Ruttenburg at dhruttenberg@smolenplevy.com.
About the Authors
Jason Smolen
Jason Smolen is a founding principal of SmolenPlevy. Smolen’s knowledge of complex estate and business issues has drawn the attention of ABC News, USA Today, E! Online, Realty Times and the Bank of America Small Business Online Community. Mr. Smolen is a graduate of the City College of the City University of New York and the George Mason University School of Law. Smolen also serves as a board member of a local citizens association and recently co-authored an article titled Why You Should Think About Spousal Limited Access Trusts (SLATS).
Daniel H. Ruttenberg
Daniel H. Ruttenberg, JD, CPA, LLM is a principal with the firm. Mr. Ruttenberg received his Bachelor of Science degree with a double major in Accounting and Finance from the University of Maryland. He earned his Juris Doctor with Honors from George Mason University School of Law and his Master of Laws in Taxation with Distinction from Georgetown University Law Center. Mr. Ruttenberg also served as the Director of the Fairfax Bar Association (FBA) for seven years. During this period, he was also elected president – the youngest in FBA history and served as a member of the Board of Directors for the Fairfax Law Foundation.
