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    The Lawletter Blog

    WILLS & ESTATES: Unadopted Stepchildren as Intestate Heirs

    Posted by Gale Burns on Thu, Jan 9, 2014 @ 17:01 PM

    The Lawletter Vol 39 No 10

    Matt McDavitt, Senior Attorney, National Legal Research Group

         Nowadays, divorce and remarriage being not uncommon, the circumstance arises where people who remarry have children from the prior marriage. Sometimes the new spouse will formally adopt his or her partner's children, but sometimes, by design or neglect, no formal adoption is ever initiated. One question that can arise in such a situation is whether the nonadopted stepchildren qualify as legal "heirs" under the laws of intestacy: Consider the scenario in which the biological parent has predeceased the stepparent, who, having raised the nonadopted stepchildren in his or her home until majority, then dies without leaving a will.

         Currently, most states' intestacy statutes do not appear to grant nonadopted stepchildren the right to inherit as legal heirs, absent "equitable" adoption, wherein the adoption process was started but never finished for reasons outside the control of the adopting parent. The child of a spouse's former husband or wife (a stepchild) is not related by blood to the decedent, and so such children are generally not deemed to be intestate heirs of the stepparent, unless that stepparent actually adopted the stepchild during life.

    [I]t is generally held that, if such children are taken into the family as constituent members thereof, and treated and fostered as children of the whole blood, they will be considered members of the family and entitled to such support. In such case, however, the rule is not to be interpreted as extending the right of inheritance to those entitled to such
    support.

    Fagan v. Troutman, 138 P. 442, 448 (Colo. App. 1914). One's legal heirs are those persons expressly enumerated in the intestacy statutes, and, therefore, where a state's statutes do not define a decedent's intestate heirs as including nonadopted stepchildren, then such individuals cannot take as a member of the class of the stepparent's intestate heirs.

         However, at least one state has softened its stance regarding stepchildren as legal heirs, albeit in a very specific context. California now 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 nonconsent of some  nterested party). Cal. Prob. Code § 6454.

         At least one state, Washington, has enacted a statute stating that in circumstances where a spouse dies, leaving behind both a surviving husband or wife and biological children from a former marriage, then if the surviving spouse later dies leaving no legal heirs, the first spouse's children from a prior marriage (i.e., the newly deceased spouse's stepchildren) are to take as legal heirs, so as to avoid escheat of the estate. Wash. Rev. Code § 11.04.095. Neither the plain text of this statute nor any of its construing case law has limited the scope of the benefited stepchildren to those adopted by the stepparent.

    Topics: legal research, wills, The Lawletter Vol 39 No 10, rights of unadopted stepchildren, intestacy, California recognizes unadopted stepchildren under, Washington state statute enacted § 11.04.095, Matt McDavitt, estates

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