Downs Law Firm, P.C.

stepchildren inherit

Do Stepchildren Inherit?

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My spouse passed. I have stepchildren who want a percentage of the profits from selling our house. What are they legally entitled to with no will?

Under what circumstances do stepchildren inherit?

If I have a will or trust and named them directly or name them specifically as beneficiaries on life insurance or other accounts, they will get what I leave if the assets are available to distribute.

When an individual passes away without a will, the state laws of intestacy instruct how the person’s probate estate will be distributed.

Intestate succession laws impact only assets that would have passed through the probate process. This typically includes only assets owned alone in his or her name.

For instance, in Maryland, under intestate succession, who inherits depends on whether the deceased had living children, parents, or other close relatives when he or she died. Stepchildren do not inherit because they are not descendants under the Maryland Law.

In Maryland, if the decedent was married and died without a will, the decedent’s spouse will receive on whether the decedent had any living parents or descendants, such as children, grandchildren, or great-grandchildren. If the decedent did not, then his or her spouse inherits all of the intestate property.

Under New Jersey’s intestacy statute, when a decedent is survived by a spouse and children who are not children of the surviving spouse (stepchildren), the surviving spouse is entitled to the first 25% of the intestate estate, but not less than $50,000 nor more than $200,000– plus one-half of the remainder of the intestate estate.

However, nj.com’s recent article entitled “Who gets this house after spouse dies with no will?” explains that the laws of intestacy don’t control the distribution of jointly titled assets with a right of survivorship (like a house) or that have a beneficiary designation (like life insurance).

If the house was jointly owned as husband and wife in joint tenancy with the right of survivorship, the surviving spouse solely owns the entire house by operation of law upon the first spouse’s death. Therefore, the stepchildren do not inherit any of the proceeds of the sale of the house.

However, if the decedent spouse owned the house only in his or her own name or the house was titled by the spouses as “tenants in common,” then the intestacy laws would apply.

Tenancy in common is an arrangement where two or more people have ownership interests in a property.

For planning purposes, a bigger question is what to do with them: a child who dies and has stepchildren. Many of our clients want those children to be treated as their grandchildren, and some do not. Therefore, unless the deceased child adopted the stepchildren or modified a descendant’s definition to include them, they would not receive a share should a child die. Discuss this with your estate planning attorney if you have stepchildren or step-grandchildren to inherit.

Reference: nj.com (May 5, 2021) “Who gets this house after spouse dies with no will?”