Last November, I wrote a post about what happens when someone dies without a will (or any other kind of estate plan) in California. In short, that person’s property will be distributed according to the rules of intestate succession. Those rules are found in the California Probate Code (CPC). They are complicated, but basically try to identify the closest relatives who are still alive. Today, I want to focus on one aspect of those rules—how they treat adopted children, foster children, and stepchildren.

Adopted Children

Under CPC § 6450, a person’s adopted child is treated the same as a natural child. Both natural and adopted children are first in the line of intestate succession after a surviving spouse. For example, suppose an unmarried man dies without a will, leaving two natural children and one adopted child. In that event, each of his children—natural and adopted—will inherit one-third of the man’s property.

Foster Children & Stepchildren

With foster children and stepchildren, the issue becomes more complicated. In general, such children are not treated the same as natural children (unless they’re also adopted). Yet, stepchildren may inherit from a stepparent in certain circumstances, and both foster children and stepchildren can sometimes be treated the same as natural children. Let’s explore this more closely.

General rule: Foster children and stepchildren are not treated the same as natural children.
Under CPC § 6402, the general rule for foster children is that they do not inherit from a foster parent. The general rule for stepchildren is that they do inherit from a stepparent, but only if the deceased left no issue (children, grandchildren, and so on), no parents, no brothers or sisters (or their issue), no grandparents, and no cousins (or their issue). In addition, CPC § 6402.5 says that in some cases, stepchildren may inherit property from their stepparent that originally belonged to their natural parent. (I told you this was complicated!)

Exception: Sometimes, foster children and stepchildren inherit just like natural children.

California law recognizes two doctrines for treating foster children like natural children in terms of intestate succession. The first is found in CPC § 6454. Under that section, a foster child or stepchild is treated like a natural child if two conditions are satisfied: (1) The parent-child relationship began while the foster child or stepchild was a minor, and continued for the rest of their lives; and (2) The step- or foster child proves by clear and convincing evidence that the step- or foster parent would have adopted him or her, but was prevented from doing so by some legal barrier. The second is the judicial doctrine of equitable adoption. This doctrine treats a foster child or stepchild as though he or she were a natural child for purposes of intestate succession if the child can prove, by clear and convincing evidence, that the step- or foster parent intended to adopt him or her and acted as if he or she had been adopted.

Both of these doctrines require proof by clear and convincing evidence. That standard is higher than the normal standard used in civil cases, which is proof by a preponderance of the evidence. Consequently, you shouldn’t rely on these exceptions as a substitute for proper estate planning if you have stepchildren or foster children. The better choice is to use a will or living trust to explicitly say who gets your property when you die.