For most, a second marriage can be a blessing. But for some they come with special challenges, especially in the area of estate planning. When you and/or your spouse have children from previous relationships, in addition to their own children together, the situation can become rather complex. The same is true for the assets you and your spouse may have brought into the relationship, as well as those assets you accumulate together. Having an estate is very important as dying without a will (or intestate) has its own problems. When it comes to dying intestate California blended families need to plan ahead. Here is why.
What is “intestate succession?”
Dying “intestate” means dying without a will. Every state has its own set of laws and rules regarding how to handle a person’s estate if they die without a will. These laws typically address which descendants are in line to receive your property, who has priority, and the rights that your spouse would have to your estate. These laws are known as the laws of intestate succession. In California, if you die without a will, your assets will go to your closest relatives.
Including stepchildren in your estate plan
Generally speaking, stepchildren do not have inheritance rights with respect to the estate of their step-parents. However, if they are legally adopted by their step-parent legally then they have the same rights as a biological child. If you have stepchildren and want them to automatically share in your estate, you have basically two options. You can either adopt them or amend your estate plan to specifically include them.
The potential effects of adopting stepchildren
Before you adopt stepchildren, you should consider the effects adoption may on their ability to inherit from their biological parent’s relatives. In many cases, when a child is adopted by a stepparent, the adoption decree terminates the parent-child relationship with the other biological parent and his or her family. In other words, the child will no longer be in line to inherit from that biological parent’s branch of the family through intestate succession.
California follows the doctrine of “equitable adoption”
When it comes to intestate, California also follows doctrine of “equitable adoption.” Under this legal principle, if a deceased person has raised a child as his or her own but hasn’t legally adopted the child, a court may permit the child to inherit nonetheless, in order to prevent an “injustice.”
Adopted children and inheritances
Adopted children are essentially treated the same as biological children for most estate planning purposes. Therefore, when it comes to dying intestate, California treats adopted and biological children are treated the same. Similarly, if you did have a will or trust established, and you provide for distributions to a class of individuals like “children,” “grandchildren” or “lineal descendants,” your adopted children would be included in that category.
California allows “second-parent” adoptions
California provides for, what is known as, second-parent adoptions. This refers to an unmarried person adopting his or her partner’s biological or adopted children without terminating the parental rights. This type of adoption arrangement can be especially important for unmarried couples. However, if they choose not to go this route, then estate planning is particularly important if they want the “nonparent” to have custody of the child should the “parent” die or become incapacitated.
Handling guardianship issues involving nonparents
If the parents in a blended family decide not to obtain a second-parent adoption then there are a few steps that need to be taken to ensure that proper guardianship is addressed, should the need ever arise. First, the parent would likely need to create a power of attorney for parental authority and appoint the nonparent as a guardian. That way, the non-parent will have the authority to act on the child’s behalf should the parent die or become incapacitated. Second, both partners need to amend their wills so that the parent’s names his or her partner as the child’s guardian, and the nonparent’s will identifies any property to be inherited by the child.
Be sure to have estate plan in place
The best way to avoid all of these issues, and to ensure your blended family is properly included in your inheritance is to have an estate plan. If you and your spouse state all of your wishes in wills, trusts and other estate planning documents, instead of relying on the laws of intestate succession, you can avoid the unwelcome surprises.
Join us for a FREE seminar! If you have questions regarding intestate succession, or any other estate planning needs, please contact the Schomer Law Group for a consultation, either online or by calling us at (310) 337-7696.