Many wills have provisions that leave property to "my children." The language might be perfectly clear to the person writing the will but later can cause confusion or, worse, family fights. For example, if the deceased person gave up a child for adoption many years ago, is that child one of "my children"? Are stepchildren included?
Lawyers call gifts that refer to an entire category of people "class gifts." If the recipients, known as "beneficiaries," are identified by name, it's not a class gift. (For example, a gift to "my children, Heather DeRosa and Jared Lee," would not be a class gift.) Below is an overview of who is usually included in a class gift to "children."
Keep in mind that the exact language of the will is key to figuring out what the will-maker intended. If it's clear elsewhere in the will that the will-maker meant to include or exclude someone from the category "my children," the will-maker's intent will always override the general guidelines below.
Generally, a child who's been formally adopted by the will-maker is considered one of the children of the will-maker. As such, the adopted child shares in any gifts made by will to the "children" of an adoptive parent. (Note that "issue" can be another term for "children" in a will.) So, if a parent's will leaves a gift to "my children," the group includes adopted children unless the will says otherwise.
A few states also allow an adopted child to inherit as part of the class of "children" if the will-maker dies during the adoption process but before the adoption is finalized.
Gifts to "my children" don't generally include stepchildren the will-maker hasn't adopted unless the will says otherwise. This rule varies from state to state, however.
Regardless of the default rules, a court always looks at what the will-maker appears to have intended in the will. For example, a North Dakota woman's will referred to a child from her husband's first marriage as "our son." A court ruled that this phrasing showed that she intended to treat her stepson as her child for purposes of inheritance. (Davis v. Neshem, 574 N.W.2d 883 (1998).)
Surviving family members might not even think about (or know about) children the will-maker gave up for adoption. But if such children exist, they could have a significant effect on how you divvy up the property.
The general rule is that when children are adopted by adults who aren't related to them, all legal links to their biological parents are cut. The biological parents no longer have any rights or obligations toward the child, and the child has no right to inherit from the biological parents.
If a parent who's given up a child for adoption to strangers leaves a bequest to "my children," the adopted-out child isn't included. (But the child would typically be included in a class gift to their adoptive parent's "children.")
The result can be very different, however, if a child of the will-maker was adopted by a close relative or stepparent. Some states treat the child as part of an inheriting group of "children" under certain circumstances. Some don't.
For example, in California, a child adopted by a stepparent still has the right to inherit from both biological parents under certain circumstances. (Cal. Prob. Code § 6451 (2022).) The thinking behind such laws is that cutting off a child's inheritance rights from the biological parents can be an unfair or unintended consequence if the child maintained a relationship with the biological parents or family.
Should a child born outside of marriage be included in a gift to "my children"? Historically, the answer was no, but because state laws have more recently changed to reflect modern families, the answer now is usually yes.
In most states now, the words "my children" and "my issue" in a will do include nonmarital children (problematically called "illegitimate children" in the past), unless the will indicates an intention to exclude them. Depending on circumstances, nonmarital children might have to jump through additional hoops to prove the will-maker is their parent, though.
Gifts from someone other than the parent are often treated differently. For example, states that have fully adopted the set of model laws known as the Uniform Probate Code make this distinction:
The main reason people make gifts to groups, instead of just naming the individuals they want to inherit, is in case the group gets larger. For example, a grandfather who leaves a gift to "my grandchildren" is likely anticipating that more grandchildren might be born or adopted before his death and trying to make sure they're included. If he simply named his current grandkids, he'd need to make a new will every time another was born.
The general rule is that members of a group born after the will was made but while the will-maker is still alive are considered part of the group. For example, a will that leaves money "to my brother Jamari's children" will include all of Jamari's children who are alive when the will-maker dies.
Children who aren't born until after the will-maker has died aren't usually included in the group unless the will-maker clearly intended them to be.
For example, say Leroy's will leaves $100,000 "to the surviving children of my sister Darlene." When Leroy signs the will, Darlene has one child. Before Leroy's death, she has another. When Leroy dies, the money's split between Darlene's two children. When Darlene gives birth to another child a year later, the third child isn't considered part of the original group specified in the will and doesn't inherit anything from Leroy.
The practical reason for cutting off membership in the group at the will-maker's death is that if you didn't, distribution of the property could be postponed indefinitely.
One exception to this rule is that a child conceived before a parent's death but born after the parent dies generally inherits the same as children born during the parent's life. The law sometimes refers to such children as "posthumous" children. For instance, if John and Kiera have two children, and John dies while Kiera's pregnant, that third child would share in any gifts John left to his "children" in his will.
In some states, another exception is a child conceived after a parent's death using assisted reproductive technologies.
How children born through assisted reproductive technology (ART) are treated for purposes of inheritance is a developing area of law. Thanks to advances in ART, it's possible for a will-maker to have biological children born well after their death.
States can vary widely in their approaches. Some states allow children who are "in utero" within three years (36 months) of the will-maker's death or born within 45 months of the will-maker's death to inherit. Other states don't allow any children conceived after the will-maker's death to inherit as "children" of the will-maker. And some states have yet to address the issue at all.
When it comes to children born through ART, other estate planning issues might also arise, such as whether a surrogacy affects who is considered a parent (usually not) and what happens to stored genetic material when a person dies. If you're pursuing ART, it's best to consult an estate planning attorney in your state who's up to date on this topic.
If a child dies before the will-maker does, what happens to the property the child would've inherited? The answer depends on state law and the language of the will. See Who Gets a Group Inheritance When One Member Has Died?
The main reason people write wills is to make sure their property is passed on to the people they want to have it. If you don't have a will, someone else will decide who inherits your estate and how your property is divided among them.
Careful planning and using clear, specific language in your will can avoid a lot of confusion after you're gone. Spelling everything out in detail will ensure your children get exactly what you want them to have and no one is left out.
Fortunately, you can often draw up a simple will yourself. And there are powerful tools like Nolo's WillMaker to help you create the estate planning documents you need.