Many wills contain provisions that leave property to "my children." It may be perfectly clear to the person who's writing the will, but later this language 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 these kinds of gifts "class gifts." If you aren't sure who's included, you must look to the language of the will itself, not any extraneous information you may have, to figure out what the will-maker intended. (If beneficiaries are listed by name—for example, a gift to “my children, Heather DeRosa and Jared Lee”— it's not a class gift and shouldn't present any interpretation problems.)
Generally, a child who's been formally adopted shares in any gifts made by will to the “children” or “issue” of an adoptive parent. So if a parent's will leaves a gift to “my children,” the group includes adopted children unless the will says otherwise.
Gifts to “my children” don't generally include stepchildren unless the will indicates otherwise. This rule varies from state to state, however. A court always looks at what the will-maker appears to have intended. 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 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 may not even think about (or know about) children the will-maker gave up for adoption. But if such children exist, they may have a significant effect on how you divvy up the property.
The general rule is that when children are adopted by unrelated adults, 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. Along with this goes the conclusion that if a parent who has given up a child for adoption leaves a bequest to “my children,” the adopted-out child is not included.
Example: A young woman gives birth to a child, who is adopted by another family. Years later, the woman's will leaves everything to “my children.” The adopted-out child is not a member of the group.
The result can be very different, however, if a child of the will-maker was adopted by a close relative. Some states treat the child as being part of an inheriting group of “children” under certain circumstances. Some don't.
For example, in California, a child who is adopted by a stepparent keeps the right to inherit from both biological parents under certain circumstances. (Cal. Prob. Code § 6451.)
Should a child born outside marriage be included in a gift to “children”? The answer depends on state law—and because laws in this area are changing, you will probably want to consult a lawyer for an up-to-date opinion.
In some states, the words “children” or “issue” in a will do not include children born outside marriage, unless the will showed an intention to include them. In others (New York, for example), such children are included in the group unless the will specifically excludes them—by limiting inheritance to “lawful issue,” for example.
In the states that have adopted the set of laws known as the Uniform Probate Code, it depends on who made the will:
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. To take a common example, a grandfather who leaves a gift to “my grandchildren” is likely anticipating that more grandchildren may be born or adopted before his death; he wants to be sure they are included. If he simply named his current grandkids, he would need to make a new will every time another was born.
The general rule is that members of a group who are born after the will is 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 are not 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 is split between Darlene's two children. When Darlene gives birth to another child a year later, the third child is not 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 death inherits as do children born during the parent's life. The law sometimes refers to such children as “posthumous” children.
If a child dies before the will-maker does, what happens to the property he or she would have inherited? The answer depends on state law, the language of the will. See Who Gets a Group Inheritance When One Member Has Died?