Step-Relatives and modern day family estate planning: Change your estate plan

The structure of the modern American family, especially with respect to step-relatives and California estate planning is rapidly changing.  While it used to be frowned upon to divorce, the practice is now fairly common.  Similarly, it is common to have children out-of-wedlock, and even more common to have step-children.  People often choose to cohabitate and start a family without the benefit of marriage.  The legal status of your relationship with your family is very important when considering their right to inherit from you and how that interacts with your estate plan.

One of the most common parts of any estate plan is a last will and testament.  With a will, you can specifically provide which person will receive which of your assets.  Moreover, you can completely disinherit any one of your family members.  This holds true even with regard to your children, whether they are from during your marriage or outside of your marriage.

If you do not have a valid will at the time of your death, your assets will pass according to the laws of intestacy.  The California probate code has specific instructions for who will inherit your assets.  Importantly, the probate code does not differentiate between a child out-of-wedlock and a child from during a marriage.  However, if the decedent was male, there are other conditions which must be met to prove paternity, such as a paternity order that was entered during the parent’s life time; “clear and convincing evidence” that the father “openly held out the child as his own;” or “clear and convincing” evidence of paternity, but it was impossible for the father to acknowledge the child.  “Openly” holding a child out as your own typically means there needs to be an “affirmative representation” in open view.

Sometimes, you have a trustee or executor which needs to be removed with neutral, professional fiduciary.  Count on us to be able to guide you through the removal process.

Note that there is no automatic right of a step-child to inherit if the step-parent did not formally adopt the step-child.  However, California has created a statute to allow a step-child to be treated as an heir, just like a biological child.  California probate code § 6454 states that if 1) the stepparent/stepchild relationship began when the stepchild was a minor and continued until the stepparent died; and 2) there is clear and convincing evidence the stepparent would have adopted the child but for the existence of a legal impediment, the stepchild may still be treated as a child for intestate succession purposes.

If you have step-relatives, you should talk to us about estate planning. Our attorney handles heirship cases in California.   Let us help you understand intestacy laws and how estates could be distributed.  Call us at 818.340.4479 today for a consultation to discuss your family.