Do stepchildren have inheritance rights in Australia?

The concept of ‘family’ has shifted and evolved in recent decades, and now it includes a broad range of variations. As family units merge and reform, blended families are becoming increasingly common in Australia.

In our new family situations, it’s not at all unusual for families to include stepparents and stepchildren today, and for many people, there’s no real difference between children and stepchildren. So, it can come as a shock when stepchildren are treated differently from biological children in the eyes of the law.

This article will take a closer look at the obligations of a stepparent to a stepchild during their lifetime and after their death. We’ll cover a stepchild’s legal options when it comes to inheritance. We’ll also look at what precautionary actions stepparents can take to provide for their stepchildren.

Do stepchildren have inheritance rights if a stepparent dies without a will?

A common question we get at our firm is whether stepchildren have inheritance rights after a stepparent’s death.

In NSW, unless they have been legally adopted or specifically included in the stepparent’s will, stepchildren don’t automatically have the same inheritance rights as biological or adopted children. This is also the position in most other Australian states and territories.

The issue most commonly arises when a person dies without a legally valid will, a situation known as intestacy. In these circumstances, the deceased person’s estate is distributed according to the intestacy rules set out in The Succession Act 2006 (NSW), rather than according to what might have been their wishes. 

Under this legislation, relatives are grouped into categories that determine who is entitled to claim a right to inherit. Because stepchildren aren’t legally recognised as children of the deceased for the purposes of intestacy, they’re generally not automatically entitled to receive a share of the estate.

However, that doesn’t necessarily mean a stepchild has no legal options. Depending on the circumstances, they may be able to apply to the Court for a family provision order seeking a share of the estate.

Stepchildren and inheritance: family provision orders

Although stepchildren don’t automatically have a right to inherit under the intestacy rules, they may still be able to seek provision from the estate by making a family provision claim.

To do this, they must first establish that they’re an ‘eligible person’ under Section 57(1) of the Act. While biological and legally adopted children are expressly recognised as eligible applicants, stepchildren aren’t included in that category.

Instead, a stepchild will usually need to establish their eligibility by showing that they were dependent on the deceased and a member of the same household at a relevant point. This is often more challenging in practice than it sounds, and even more so for adult stepchildren who are often financially independent and no longer living with their stepparent.

Even where a stepchild may be eligible, it’s important to act quickly. In most cases, an application for a family provision order must be made within 12 months of the deceased’s death.

How to write a will when you have stepchildren

If you’re a stepparent, relying on the intestacy rules may produce a very different outcome from the one you intended, particularly if you intend to include stepchildren. Because stepchildren don’t automatically inherit from a stepparent’s estate in NSW, having a clear, legally valid will is one of the most effective ways to ensure your wishes are carried out and reduce the risk of disputes after your death.

When preparing or updating your will, consider the following:

• Ensure your will is legally valid by having it properly written, signed and witnessed.
• Clearly identify each beneficiary, including any stepchildren, and specify what they’re entitled to receive.
• Use clear, unambiguous language to reduce the risk of confusion or competing interpretations.
• Nominate substitute beneficiaries in case your primary beneficiaries are unable or unwilling to accept their inheritance.
• Seek legal advice before excluding someone who may have grounds to contest your will.
• Consider leaving financial gifts as percentages of your estate rather than fixed dollar amounts, which can become outdated over time.
• Clearly identify any valuable or sentimental items and the person who is to receive them.
• Include a residual clause to deal with any assets that aren’t specifically mentioned in your will.
• If appropriate, prepare a letter explaining the reasons behind significant decisions, particularly where family members may expect a different outcome.
• Remember that assets such as superannuation, life insurance and jointly owned property may not automatically form part of your estate, so seek advice about how these are dealt with.
• Review your will regularly, particularly after major life events such as marriage, separation, divorce, a new relationship, the birth of children or changes to your financial circumstances.

Stepchildren and inheritance: blended family disputes

As you’ve probably guessed, blended families can add an extra layer of complexity to estate planning. Expectations about who should inherit don’t always align with what the law provides, particularly where stepchildren have been treated as part of the family but haven’t been legally adopted or included in a will.

When disagreements arise, it’s important to understand the difference between challenging a will and contesting a will. Challenging a will means questioning whether the will is legally valid, for example because of concerns about the deceased’s capacity or the circumstances in which it was signed.

‘Contesting a will’ is different. Rather than disputing the validity of the will itself, it involves arguing that the distribution of the estate doesn’t make adequate provision for an eligible person. An excluded stepchild who brings a family provision claim is one example of a will being contested.

Not every inheritance dispute ends up in court. Depending on the circumstances, these matters can often be resolved through negotiation or mediation, with court proceedings generally being a last resort if an agreement can’t be reached.

Providing for your stepchildren during your lifetime

Many stepparents play a significant role in raising their stepchildren. They help with school runs, attend sporting events, provide financial support and, in many cases, are one of the only parents a child has ever really known. Despite this, the law doesn’t automatically recognise that relationship in the same way it does in the case of a biological or adoptive parent.

The legal distinction between biological, adopted and stepchildren doesn’t only affect inheritance after death. It can also influence the rights and responsibilities that exist while a stepparent is still alive.

In most circumstances, there’s no automatic obligation to financially support a stepchild, nor any inherent parental responsibility or authority to make significant decisions about their upbringing. But there are some exceptions.

A stepparent may acquire parental responsibility by legally adopting their stepchild or by obtaining a parenting order from the Court. Depending on the circumstances, these arrangements can give a stepparent the legal authority to make important decisions about the child’s care and welfare but can also create financial obligations with respect to the child.

Talk to a Watts McCray family lawyer

Blended families often involve legal issues that span more than one area of law. Whether you’re navigating the breakdown of a relationship, making parenting arrangements or trying to understand your rights and responsibilities as a stepparent, getting advice early can help you make informed decisions and avoid unnecessary disputes.

The experienced family lawyers at Watts McCray can provide practical advice tailored to your family’s circumstances and, where your matter also involves wills or inheritance issues, help you understand when specialist estate law advice may also be appropriate.

Reach out to Watts McCray today.