Do Stepchildren Inherit?

POSTED ON: May 31, 2021

My spouse passed. I have stepchildren who want my home. What are they legally entitled to with no will?

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, as either “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”.

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 one-half.  A “spousal usufruct” lasts for the length of the surviving spouse’s life or until the surviving spouse remarries, and simply means that the surviving spouse gets the “use” and “fruits” of that one half (hence the Latin, “usufruct”).

All separate property belonging to the predeceasing spouse is inherited directly and equally by the children of the predeceasing spouse.  These children can be from the current marriage or a prior marriage or both.

In nj.com’s recent article entitled “Who gets this house after spouse dies with no will?” 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, the question of Do Stepchildren Inherit? the answer is no.  However, 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 financed during the marriage!).  As separate property, the children of that spouse, whether from a prior marriage or from the current marriage, will inherit this 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.

In the case of spouses who own the house as community property, the surviving spouse will own one-half of the house as co-owner, and will have the right to use the predeceased spouse’s one-half until remarriage.

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.

Clients 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, stepchildren inherit if a home is acquired by one spouse before marriage, and that house is the “separate property” of that spouse and will be inherited by the children of that spouse (even if you paid a mortgage note on it during your marriage!).  The stepchildren can actually have the surviving spouse evicted from the home!

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.  If you would like to discuss, feel free to BOOK A CALL with me today.

Reference: nj.com (May 5, 2021) “Who gets this house after spouse dies with no will?”

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