My spouse says that he doesn’t have to modify his estate plan to include his stepchild, is that true?

It depends on why you are asking this question. Technically, it is true. There is no legal requirement that a stepparent has to include a stepchild in his or her estate. However, if you are asking whether an estate plan needs to be modified if your spouse wants to include stepchildren in the estate then the answer is likely yes.

Here’s Why

There are very limited circumstances when a stepchild will have the right to inherit property without being provided for specifically in a stepparent’s estate plan. A stepchild could inherit from a stepparent without being provided for in an estate plan only if there is clear and convincing evidence that the stepparent would have adopted the stepchild if there had not been a legal impediment to adoption. This theory is known as “equitable adoption.”

Don’t Rely on Equitable Adoption

Equitable adoption can be difficult to prove and may be contested by others who stand to inherit property from an estate. However, stepparents do not need to take their chances. Instead, they can specifically provide for stepchildren in their will, trust, life insurance, or other estate planning documents. That way their intent is clear and the stepchildren can inherit what the stepparent wanted them to inherit.

Make Sure the Estate Plan Is Properly Executed

Do not spend another day worrying about what would happen to your children if your spouse died. Instead, encourage your spouse to talk to an estate planning lawyer about modifying his estate properly so that the estate plan cannot be contested upon his death.

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James F. Roberts
Founder and owner of the Law Office of James F. Roberts and Associates, a premiere estate planning law firm