Step-Children and Your Will
Jenny Chase, will writer at Quick Will looks at the considerations you need to make for stepchildren when making a will and answers the thorny question will your stepchildren get any of your estate when you die?
English Law states that, for inheritance purposes, the definition of “children” is different from “step-children”. In essence, unless you’ve adopted them, your step-children have no legal right to an inheritance from you; whether you die with or without a Will. So, if you want to leave your step-children any part of your estate at all, you are going to need to name them in your Will.
Step-children are the children of your partner or spouse, that you haven’t adopted. If you have adopted them, they are legally your children, with the same legal connections to you as children born to you, what are known as biological children.
There is no law that requires you to leave any part of your estate to any of your children or step-children and there is no legal tie between you and your step-children. In effect, your legal relationship to your step-children is equivalent to someone with no familial relation. So in terms of Will making, you have no obligation to leave anything to your step-children.
How to Exclude Your Step-Child
You don’t need 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, then he or she will get nothing.
However, be aware that your step-child could end up with some of your estate via your spouse or partner. If you are married or partnered to your step-child’s parent, you will probably leave a large portion of your estate to your spouse or partner. After your death, your spouse or partner inherits your estate and they will then be free to give whatever they want from the proceeds of your estate to any step-child. In this way, your step child could end up with the proceeds from your Will that you leave to your spouse or partner. This scenario also holds true if you’re married and don’t have a Will, as under the laws of intestacy everything that you own will go to your spouse and children and they are then able to give whatever they wish to your step-child.
How To Ensure Your Step-Children Receive An Inheritance
A stepchild will not automatically inherit from your estate unless they have been legally adopted by you. If you wish to pass on money or other assets to them, then you will need to make a Will to do so. Using your Will, you can leave your step-children a percentage of your entire estate, or you can leave specific gifts, like furniture, jewellery, cars, computers and so on.
In addition to your Will, you can also leave gifts to your step-child using a number of other estate planning tools such as a living trust whereby you can name your step-child as a beneficiary of the trust. Additionally, if you have a life insurance policy you can name your step-child as a beneficiary of the policy.
Leaving an Explanation
When families blend together, family relationships can become complicated and strained, especially when it comes to who gets what after someone dies. If possible, talk to each member of your family to explain your plans and your reasoning about the decisions you make in your Will, trust or general estate plan. This is your best chance of creating peace because you will be available to answer any questions they may have.
However, if talking it over is not possible, or just not your style, you can leave a letter to your survivors explaining your decisions. The letter won’t have any legal weight, but it can be a comfort to those you leave behind. In it you can explain why you gave what to whom. Leave your letter with your other estate planning documents.
Inheritance and stepfamilies
If, as is very common, someone dies without making a Will, that person’s assets are distributed according to the laws of intestacy. These are strict rules that require the assets to go to the dead person’s spouse, children, parents, siblings etc.
It is important to understand that the intestacy rules do not cover stepfamilies unless the parent who died had formally adopted the stepchild. If you and your partner are married that means that you can each inherit a certain amount from each other under the intestacy rules, but that does not include your stepchildren. Only a spouse, a blood relative, or an adopted child can inherit automatically from someone who died without leaving a Will.
It is possible to challenge the effect of the intestacy, but again only people within certain categories of relationship to the person who died are entitled to do this.
Can stepchildren challenge a will?
The basic principle in England and Wales is that each individual is free to make a Will that leaves their assets as they choose. Only people within certain categories of relationship to the person who died are entitled to challenge the Will.
If a stepchild was treated as a child of the family by a married step-parent or was financially dependent on a step-parent who has died, and there is either no or inadequate financial provision on the death of the step parent, he or she can make an application to the court under the Inheritance (Provision for Family and Dependants) Act 1975 on the basis that “reasonable financial provision” has not been made for them.
It is worth remembering that court proceedings can of course be very stressful and costly and the whole process may damage family relations. Step-children of an unmarried couple can only make a claim on the basis of financial dependency. If the challenge is successful, the amount the stepchild is likely to be awarded by the court will depend on a number of factors, including the size of the estate, the age of the stepchild, his or her needs, the level of the dependency etc.
The Legal Difference between Children and Stepchildren
From a legal standpoint, stepchildren have no rights to their stepparents’ estate, unless they’ve been specifically mentioned in the Will. The rules of intestacy make no provision for step-children even where there are no surviving relatives, so if you want to provide for your step-children you should make a Will. Unlike natural and adopted children, who have automatic rights to inheritances unless specified otherwise, stepchildren need to be cited by name in order to be included in someone’s Will.
Here at Quick Will, our Wills do not use terms like descendants or heirs to refer to children or to step-children, as these terms are not only subject to confusion, they are additionally complicated for blended families with step-children. Instead, we insist that each step-child is named using their individual names.
If you are living in a stepfamily, it is therefore vital that you make a Will that ensures that on your death your assets go to the people who are important to you and that the wording of the Will does not cause any difficulties after your death. Here at Quick Will we recommend you protect every member of your family and make a Will now.