Do Stepchildren Inherit?
When an individual passes away without a will, Louisiana’s laws of intestacy instruct how the person’s probate estate will be distributed. For married persons, it will depend on how each item of property is classified, whether as “community property” or “separate property.” This is important, especially for blended families.
In general, “separate property” is property acquired before marriage and any property acquired during the marriage that was acquired by inheritance or gift. In general, “community property” is property acquired during the marriage that is not “separate property”. So unless it is inherited property, a good rule of thumb is that all property acquired during the marriage is “community property”. (Note that if you have a premarital agreement with your sposue, this will usually result in a “separation of property” regime, where all property acquired during the marriage is separate property).
Upon the death of the first spouse, all community property is divided equally between the surviving spouse and the succession of the first spouse to die. The surviving spouse is entitled to his or her one-half of the community property, plus the surviving spouse is entitled to a “spousal usufruct” over the one-half of the predeceased spouse’s community property. A “spousal usufruct” lasts for life of the surviving spouse’s or until the surviving spouse remarries, if earlier, and simply means that the surviving spouse gets the “use” and “fruits” of that one half.
If no will is in place, all separate property belonging to the predeceased spouse is inherited directly and equally by the children of the predeceasing spouse. These children can be from the current marriage, a prior marriage, or both.
In nj.com’s recent article entitled “Who gets this house after spouse dies with no will?” the writer explains that the laws of intestacy don’t control the distribution of assets that were jointly owned with a right of survivorship (like a house) or that have a beneficiary designation (like life insurance). In those cases, which govern many of the other 49 states, the answer to the question of “Do Stepchildren Inherit?” is no. Keep in mind that this article was written from the point of view of a common law non-community property state. Louisiana is quite different.
In the case of a spouse who purchased a home before marriage, that spouse will be the owner of that house (even if the mortgage was paid off during the marriage!). As separate property, the children of that spouse, whether from a prior marriage or from the current marriage, will inherit that property DIRECTLY. As the successor owners of this separate property, they would have the ability to evict the surviving spouse. This happens more often than I would like to say.
This can also occur in cases of unmarried domestic partnerships, even if one of the partners had no children. The siblings and other relatives of the house can inherit the separate property of the predeceasing partner, and they can become the owners and evict the surviving partner.
In the case of spouses who own their house as community property, upon the death of the first spouse to die, the surviving spouse will own one-half of the house and will also have a “usufruct” over the predeceased spouse’s one-half (at least until the survivor remarries).
A similar approach is used for all other property. However, the extent of control over the such property will depend on whether the property is classified as “consumable” or “nonconsumable”, which is beyond the scope of this article.
You should just be aware that separate property of the predeceasing spouse is indeed inherited directly by the children of the first spouse to die, whether they be your biological children or your stepchildren.
As a matter of fact, your stepchildren can inherit your home acquired by your spouse before marriage even if made mortgage payments on that house during your marriage! Stepchildren can actually have a surviving spouse evicted from a home the surviving spouse thought was his or hers!
Blended families, particularly those with significant portions of separate property, are usually in dire need of an estate planning lawyer to ascertain if stepchildren inherit. To avoid a litigation over property after death, have at least a good Last Will and Testament in place. More appropriate plans might include a living trust to qualify for Medicaid Long Term Care benefits and avoid probate.
BOOK A CALL with me, Ted Vicknair, Louisiana Board Certified Estate Planning and Administration Specialist, Louisiana Board Certified Tax Law Specialist, and Louisiana CPA to learn more about estate planning in Louisiana, incapacity planning, and Louisiana asset protection.
If you liked this article, “Do Stepchildren Inherit?”, check out these other articles addressing estate planning for clients without children: No Kids? What Happens to My Estate? and Do Stepchildren Inherit?
Reference: nj.com (May 5, 2021) “Who gets this house after spouse dies with no will?”
