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can stepchildren contest a will

Can Stepchildren Contest a Will

Yes, stepchildren can contest a will if they are named beneficiaries of a prior will.

In modern families, it is common for stepchildren to be treated as full biological children for all purposes, including inheritance purposes.  However, probate rules and the law of intestate succession generally do not treat stepchildren as children for inheritance purposes.

In a typical inheritance situation, a parent might leave their estate in equal share to biological and stepchildren, especially where the stepchildren were raised from a young age by the stepparent. In some situation, however, such a long standing estate plan can be altered right before the death of the stepparent, oftentimes by one of the biological children who do not believe that it is fair to share their inheritance with step-siblings.

Such a situation can be quite unfair to the stepchildren, especially where, for example, the biological father of the children earned all of the money, died first, left his entire estate to his surviving spouse (stepmother), assuming that she would leave her estate in equal share to her biological children and to the stepchildren.

Here are three basic rules that stepchildren seeking to contest a will must know.

  1. Stepchildren are not included in the class of intestate heirs, except in a few states, where they are considered the last in line of intestate heirs. When someone dies without a will, the law of intestacy of the state where the person resided will control who receives the estate. If the person passing away was not then married and had no living parents, the estate will be split in equal share among the biological descendants. Stepchildren who have never been adopted are not normally included. Therefore, if there is no valid will, the stepchildren will typically not inherit from the stepparent. Some states include stepchildren as interstate heirs, but only if there are no other intestate heirs, i.e., no children, no parents, no siblings, no cousins, nieces, or nephews.
  2. In order for the stepchildren to contest a will, they must have been named in a prior will. In a typical will contest situation, the last will is challenged on the grounds of lack of capacity, undue influence, fraud, mistake, or coercion. If the contested will is thrown out of probate, the estate inheritance plan reverts to the next most recent will. If the stepchildren are not part of the prior will, they would benefit from the will contest. Even if a number of wills could be successfully challenged, the stepchildren must be named in one of the prior wills to have “standing” to make a challenge to a will. If all of the wills are knocked out, we revert to the law of intestacy, which only includes the biological descendants of the deceased, unless in one of the states that treats them as intestate heirs.
  3. Even if biological dad and stepmother makes their wills at the same time and the wills are identical in that both wills leave the estate to the surviving spouse, and upon the second to die leave the estate in equal shares to the biological and stepchildren, after the death of the first spouse, the surviving spouse can usually change his or her will to exclude the stepchildren. In most states, the concept of reciprocal wills or mutual wills making a binding contract to never change the wills is not recognized. Only if the wills specifically say that they constitute a binding contract not to change the wills can the mutual wills as such be enforced.

In sum, stepchildren can contest a will, so long as they are named beneficiaries of at least one prior will, or are in one of the few states that allows for stepchildren to be intestate heirs AND there are no other higher ranking intestate heirs. However, just because the stepchildren can, in theory, contest a will, does not mean that a will contest would be successful. The normal requirements of will contests would still have to be met.  We have written about how to contest a will in Florida, California, New York, Texas, Ohio, and Pennsylvania, to name a few.

So, if a stepchild has the standing to contest a will, there must be sufficient grounds to contest the will, such as undue influence, lack of capacity, duress, fraud, or mistake.

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