STEP-CHILDREN AND YOUR WILL
Will your step children get any of your property when you die?
Unless you’ve adopted them, your step-children have no legal right to an inheritance from you – even if you die without a will.
So if you don’t want to leave anything to your step-children, you don’t have to do anything. However, if you want to leave your step-children any part of your estate, you’ll need to name them in your estate plan.
Who Are Step-Children
Step-children are the children of your partner or spouse, if you haven’t adopted them. (If you have adopted them, they are legally your children, with the same legal connections to you as children born to you.)
There is no legal tie between you and your step-children. So in terms of will-making, you have no obligation to leave anything to your step-children. In fact, there is no law (in any state) that requires you to leave a certain portion of your estate to any of your children. However, all states have laws that:
- protect children who are accidentally left out of a will, and
- give a percentage of an estate to children whose parent dies without a will.
But neither of these laws apply to step-children. In effect, your legal relationship to your step-children is equivalent to someone with no familial relation – like a friend or neighbor.
How to Leave Gifts to Your Step-Children
If you want to leave a gift to a step-child, you can—just as you would leave a gift to anyone else. Using your will, you can leave your step-child a percentage of your entire estate, or you can leave specific gifts—like $5,000, your computer, or your golf clubs.
If you have other children, when you make your will do not use terms like “issue,” “descendants,” “children,” or “heirs” to refer to them. Those terms are always subject to confusion, and they are additionally complicated for blended families with step-children. Instead, name each child and each step-child using their individual names.
In addition to (or instead of) using a will, you can also leave gifts to your step-child using a number of other estate planning tools. For example:
- If you use a living trust to avoid probate, you can name your step-child as a beneficiary of the trust.
- If your step-child is eligible for government disability benefits, you can provide for your step-child using a special needs trust.
- If you have a life insurance policy or a pay-on-death financial account, you can name your step-child as a beneficiary of the policy or account.
Of course, you’ll need to keep in mind that any gift you leave to your step-child will reduce the amount of property available to your other beneficiaries – like your other children and your spouse. For some people, this can be an area of concern.
How to Exclude Your Step-Child
You don’t have to do anything to make sure that your step-child gets nothing through your will. If you don’t use your will to leave anything to him or her, he or she will get nothing.
One important caveat: Your step-child could end up with some of your property via your spouse or partner.
If you are married or partnered to your step-child’s parent, you will likely leave a good portion of your estate to your spouse or partner. If you die first, your spouse or partner will end up with your property and will be free to leave (or give) that property to your step-child. In this way, your step-child could end up with gifts from your will or trust, proceeds from your life insurance, your personal effects, and anything else that you leave to your spouse or partner.
This scenario also holds true if you don’t do any estate planning. If you’re married and don’t have a will, everything you own (that doesn’t have a beneficiary designation) will go to your spouse and children. They will then be free to leave (or give) that property to your step-child.
If this concerns you, it is avoidable, but you have to plan for it. For example, you can set up a “marital bypass trust.” This type of trust allows your spouse or partner to use your property after you die, for the rest of his or her lifetime. Your spouse or partner will never own the property and will never have the right to give away the property. When he or she dies, your property will go to beneficiaries you name. See a lawyer to set up this kind of arrangement.
Leaving an Explanation
Consider whether it would make sense for you to explain the decisions you made in your will, trust, or general estate plan. When families blend together, family relationships can become complicated and strained – perhaps especially when it comes to who gets what. If you think your family will have questions or concerns about the plans you make, there are steps you can take to mitigate the possibility of familial strife.
First, if possible, talk to each member of your family to explain your plans and your reasoning. This is your best chance of creating peace because you will be available to answer questions and have follow up conversations.
However, if talking it over is not possible – or just not your style – you can also leave a letter to your survivors explaining the decisions you made. The letter won’t have any legal weight, but it can be a comfort to you and to those you leave behind. In it you can talk about things like:
- why you gave what to whom
- how you would like gift recipients to split shared gifts
- your thoughts about your relationships with your children or other family members
- your choice for executor, or
- any general thoughts about life.
There is no official form for this type of letter. You can make it what you want it to be. Just be careful not to contradict the terms of your will or estate plan. Leave your letter with your other estate planning documents.
Also, if you have any real concerns that someone may contest your will or fight your estate plan, get help from a Philadelphia estate planning attorney who can help ensure that your wishes are followed.
Reference: Layers.com, Wills and Probate