Mixed Family Inheritance

With divorce rates hovering around 40% it is now common to consider how to include stepchildren in a will. The important point to remember is that for stepchildren to be able to have an inheritance, there needs to be a will because the general rule under intestacy laws is that stepchildren have no inheritance rights. So again, if you want to leave an inheritance for you stepchildren, a will has to be created making that wish clear.

How to include stepchildren in a will is another question. Often wills create “classes” of individuals who will take upon a decedent’s death. It is possible to treat biological children and stepchildren exactly the same by creating a class of “children” that explicitly includes stepchildren in that class. Alternatively, biological children and stepchildren can be placed in different classes with different rights under the terms of the will.

This can matter a great deal if, for instance, a child predeceases the testator of a will. If the will creates one class of “children” including three biological children and two stepchildren, each to take 20% upon decedent’s death, and one of the biological children predeceases the testator, each child could then take 25% under the terms of the will. But if two classes are created, one for biological children and another for step children (with let’s say each biological child taking 25% and each stepchild taking 12.5%), and one of the biological children dies, the share intended to go to the deceased biological child could become available only to the other biological children in that class, with nothing changing for the stepchildren. In that case the two remaining biological children would take 37.5% and each stepchild would continue to take 12.5%.

The above explanation really just serves as an introduction to the concept of classes in a will. There is a great deal of flexibility for a testator to decide how he or she wants the estate’s assets distributed, the explanation above is only a basic example of how distribution could potentially happen.


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