It is very common for couples to adopt or foster children, even if they have their own biological children already. The question does come up of their legal status for inheritance purposes, especially if there is not a will or trust set up.


Adopted Children


No Estate Plan – Intestate Succession

An adopted child has the same legal status as a biological child in California, even if they are not US citizens. What this means is that if you die without a will, intestate law will control the distribution of your estate and adopted children will receive the same share as other children in your family. The general rule is that if your spouse is still alive, he or she inherits all of the joint family assets (to continue caring for the family) and if not, the children inherit in equal shares. There are different rules for the separate property of a spouse, so it is important to understand how any ultimate inheritance is affected.


Estate Plan

Of course, this is also true if you make an estate plan and name them directly as an heir, which is the preferred method. If you have an estate plan and do not include them, they could have the right to claim a share anyway as a ‘pretermitted heir’. The only way around this is to make your intention to exclude them clear in your estate plan.

If you have biological children that you may have placed for adoption, they will not receive a share from you if they were legally adopted by another family. But you can still name them in your will or trust if you wish.


Foster Children

Foster children (or stepchildren) who are not legally adopted do not have a right to a share of your estate, unless they can prove that 1) they were under your care as a minor and 2) an adoption would have occurred if possible. As with adopted children, you can always name them in your estate plan as a beneficiary for an amount that you choose.


Using an Estate Plan to Care for Children

Because of the many different types of parent-child relationships, it is best to make sure that you have a will or trust in place to ensure their care in the event that you die. This way, the entire family is included, and you do not have to worry about intestate laws or legal claims in the future.

If you have adopted or foster children and would like to learn more about how to plan your estate, please contact the attorneys at Shoup Legal.