August 27, 2015

Step-Child Inheritance

If a person passes away without a will, the legal term for this is "intestacy." 

If the decedent's estate was not disposed of by a trust or beneficiary designation(s) such as a pay-on-death account, his or her estate will be distributed to their heirs, i.e. their next of kin. This might include a parent, child, uncle, aunt, cousin, etc. For example, assume Bob was a widower who only had 1 child during his marriage. Bob passes away intestate. His sole heir would be his child. If Bob had 2 children, the 2 children would split the distribution of Bob's estate as heirs.  

Probate Code § 6402 lists the order of priority for a decedent's heirs. It goes from those closely related to the decedent to those less closely related to the decedent. The California legislature presumed that a decedent would prefer to leave their estate to a close relative rather than a remote relative.

A question that occasionally arises is whether a step-child is entitled to inherit from an intestate step-parent. The answer, much like most legal questions, results in the familiar refrain "it depends."

The applicable law is Probate Code § 6454. It states as follows:

For the purpose of determining intestate succession by a person or the person’s issue from or through a foster parent or stepparent, the relationship of parent and child exists between that person and the person’s foster parent or stepparent if both of the following requirements are satisfied:

(b) It is established by clear and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal barrier.

Thus both elements, (a) and (b) of the foregoing statute, need to be satisfied to claim an intestate inheritance as a step-child from a step-parent. If both elements cannot be satisfied the step-child is basically a nobody for purposes of intestate succession and receives nothing.

If a step-child cannot show a colorable claim under Probate Code § 6454, there is an alternate route available. A step-child can assert a claim of equitable adoption. "In order to take as an equitably adopted child from the alleged adoptive parent's intestate estate, the claimant must prove the decedent's intent to adopt by clear and convincing evidence." Estate of Ford (2004) 32 C4th 160, 173.