Do Stepchildren Have the Right to Contest a Will?

Hand writing my last will

If you recently lost a loved one, you may be dealing with the management and dispersal of the deceased’s estate. One issue that you may face with today’s blended families is the rights of the step children. More specifically, you may wonder can stepchildren contest a will. The answer isn’t a simple “yes” or “no” because it can depend on other factors.

Are the Stepchildren in Standing?

Stepchildren have the right to contest the will if they are in standing. “In standing” is a legal term that means the step child is included as one of the beneficiaries named in the will or part of the list of intestate heirs. Intestate heir is another legal term, which simply means that there was no will and the heirs are determined by state probate law.

Each state has a law that addresses who inherits if there is no will when someone dies. In such a situation, the probate law lists who can inherit and in what order. Stepchildren do not have an automatic right as with a biological or adopted child.

When Stepchildren are Named as Beneficiaries

Many families treat the step child the same as a biological child. They often inherit equally when a parent dies. In this situation, they are able to contest the will if they believe it was changed due to undue influence by a biological child.

One of the common problems in this case is that the biological children believe they should receive most or all of the inheritance because they are related to the deceased by blood. They may view their relationship as above the parent and stepchild’s and that they are entitled to the entire estate regardless of whether the decedent wanted to leave reasonable financial provision for their stepchildren.

An intestate Estate

If a person died without making a will or if the will is deemed to be invalid, the estate is said to be intestate. The probate court will determine who inherits, which will likely be the surviving spouse and biological children.

In most states, the stepchildren are not considered equal with biological and adopted children. If the decedent adopted their stepchildren before their death, they would be treated as adopted children with probate court, who have the same rights as biological children.

When Stepchildren are Included as Intestate Heirs

A few states do include stepchildren in the list of heirs for an intestate estate. Most of the time, they are listed at the bottom of the list. They will only inherit if there are no other children, no spouse, parents, siblings, grandparents, or other distant relatives.

Stepchildren Must Be Named in a Prior Will

For the adult step children of the deceased person to have grounds to contest a will, they must have been named as heirs in a prior will. This allows them to be in standing and gives them the legal right to challenge the will. This will only benefit them if they are included in a prior will of the deceased, which is found to be the most recent valid will.

Invalid Will

If all wills are deemed to be invalid, the estate will become intestate. The heirs will be whomever is listed by state law, which will not be the stepchildren unless they are the last of the intestate heirs.

Example of Stepchildren Being Written Out of a Will

A prime example of where this would be the case is if both parents create separate but mutual wills naming the other spouse as beneficiary and all children inheriting equally. The stepchild’s biological parent dies and the step parent decides to change their will to where only the biological heirs will inherit. Because the stepchildren were named in a previous will, they have the right to contest.

The right to contest doesn’t mean they will be successful with their contest. The surviving spouse has the right to change their will and leave the stepchildren out of the inheritance in favor of thier own children in most cases.

Reasons for Stepchildren to Contest a Will

Just as with any other heirs, stepchildren don’t have the right to contest a will because they don’t like the terms. They can only contest if they have grounds.

Grounds for contesting a will include undue influence, lack of capacity, fraud, or duress. They can also contest if they believe there was a mistake. In each of these situations, the burden of proof is on the person contesting. This can be difficult to prove even if they know they are in the right.

Factors to Consider When Contesting a Will

The court may consider other factors when a stepchild contests a will. For instance, your stepparent may have adequately provided for you financially up until their death. They may have been a significant part of your educational financial and emotional support.

The courts may also consider your age now and your age when you became a permanent member of the stepparent’s family. If your relationship was like that of a parent and child, you may have a better chance to successfully challenge the will.

Seek Legal Advice When Contesting a Will

If you are a stepchild who believes they have a right to contest a will, you should seek legal advice from a probate attorney. They can assist you in forming your challenge to the validity of the will and determining if you have a right to an inheritance.

If you are a stepparent who wants to be assured their stepchildren will get to inherit your estate, you may need to discuss your estate plan with an estate attorney. A trust with your stepchild named as the beneficiary will help protect their inheritance. Legal advice from an experienced attorney can help you know the next steps in navigating this complex situation.