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are children from prior relationships. Generally, a person making a will has freedom to dispose of his or her property as they choose. Most states have provisions to provide for spouses, but much lesser protections are in place for children or step-children. Where the difference in distribution of a decedent's estate as to step-children comes into play is usually in situations where a person writes a will and after that date, marries a spouse that has an existing child. Wills are often written to describe a person's children as ''issue
,'' or ''heirs
.'' With the existence of step-children, will interpretation
becomes more difficult. Therefore, clearly drafting your will to either include or exclude step-children is very important.
Common Ways That Step-Children Are Provided for or Omitted
Generally, it's not presumed that children or step-children were intentionally disinherited. Sometimes a person wishes to treat all children and step-children the same. Other times a person wants to provide differently for step-children than for his or her own children. This may be because the step-children have other financial resources due to their age or their inheritance rights from other portions of their own families. In the case where the person has children from his or her present marriage and wants to treat any step-children the same as his or her biological children, the will should include provisions for the step-children. In addition, to make the will as clear as possible, be sure that it'll include all of the parent's children and step-children, and remember that the will should be updated if a new child is added to the family.
In some cases, a person specifically names his or her children as the beneficiaries of specific property or a portion of the estate. This is also true of step-children, they may be named as specific beneficiaries in the will. In other cases, a step-parent may wish to refer to the step-children by name and make them contingent beneficiaries, which means that they only receive estate property if their natural parent doesn't survive the person making the will.
Most states protect children by interpreting a will made before a child enters a family by presuming that the person making the will didn't intend to disinherit the child or step-child. Often, the child who's unintentionally omitted or ''pretermitted'' receives what would be his or her intestate share had the testator died intestate. The intestate share is an portion, percentage or amount of estate property provided for by state law. The pretermitted child receives this share at the expense of the beneficiaries in the will. Many times giving a pretermitted child the equivalent of an intestate share is better than excluding the child totally but often is not what the testator would have chosen had he or she made a new will.
Questions for Your Attorney
- How can I be certain to include (or exclude) a step-child in my will?
- What evidence may be used to show my intent?
- If a step-child takes an allowance or an intestate share, what happens to the rest of my estate?
- Is a step-child included in the definition of "child," "descendant" or "issue"?
- May a step-child contest a will?
- May a pretermitted step-child contest a will?
- How would the share for a step-child be measured if he or she was excluded from the will?
- What about the shares of the other children?
- How will my other heirs be treated if I include (or exclude) a step-child?