His Kids, Her Kids–Who Inherits? What About Adoption?
Adopted children
Adopted children are treated the same as biological children for most estate planning purposes. Thus, adopted and biological children are treated the same way under a state’s intestate succession laws, which control who inherits property in the absence of a will.
In addition, adopted children generally are treated identically to biological children for purposes of wills or trusts that provide for gifts or distributions to a class of persons, such as “children,” “grandchildren” or “lineal descendants” — even if the child was adopted after the will or trust was executed.
Stepchildren
Stepchildren generally don’t have any inheritance rights with respect to their step-parent’s estate, unless the step-parent legally adopts them. If you have stepchildren and want them to share in your estate, you should either adopt them or amend your estate plan to specifically provide for them.
Before you adopt stepchildren, however, you and your spouse must consider the potential effect on their ability to inherit from (or through) their other biological parent’s relatives. In most cases, 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 can’t inherit from that biological parent’s branch of the family — and vice versa — through intestate succession. For example, if Tina is adopted by her stepfather, Mark, the adoption would terminate Tina’s intestate succession rights with respect to her biological father, Ed, and consequently, Ed’s family.
California provides an exception for certain “family realignments.” From the previous example, let’s suppose that Ed is deceased. Mark’s adoption of Tina wouldn’t sever the connection to Ed’s family. If, for example, Ed’s sister Emily dies intestate (without a will), Tina will be included in the class of heirs.
If you wish to exclude stepchildren from your estate, in most cases it’s sufficient to do nothing.
California also follows doctrine of “equitable adoption.” Under this doctrine, if a deceased person has raised a child as his or her own but hasn’t legally adopted the child because of a legal barrier, a court may permit the child to inherit to prevent an “injustice.”
Second-parent adoptions
California allows 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.
For unmarried couples who choose not to obtain a second-parent adoption, estate planning is especially critical if they want the “nonparent” to have custody of the child should the “parent” die or become incapacitated and if the nonparent wants the child to inherit from him or her.
First, 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 and has priority over the parent’s blood relatives in the event the parent dies or becomes incapacitated.
Second, both partners should amend their wills. The parent’s will 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.
Domestic Partners and Same-Sex Couples
In California, same-sex couples enjoy all of the same rights and privileges as other couples. They also have the same estate planning challenges related to adoptions.
Have a plan
To ensure your desired treatment of adopted children or unadopted stepchildren, the best strategy is for you and your spouse or partner to spell out your wishes in wills, trusts and other estate planning documents. As with most estate planning issues, relying on the laws of intestate succession can lead to unwelcome surprises.
The best plan is to call an estate planning attorney and ensure that you have established in writing your desires regarding your children and your estate. Call us at HAVENS MALCZYNSKI GRIGOLLA, LLP for a free consultation. (626) 385-6303. www.glendoralaw.com mail to: info@glendorala.com.
