Law of Wills, 2016A

purpose of the intestacy system is to carry out the presumed intent of the decedent. The exclusion
of stepchildren from the list of possible heirs may be a product of the belief that the stepparentstepchild
relationship is usually a contentious one. Historically, foster children did not stay in the
same home for very long. Thus, the foster parent and the foster child did not have time to develop a
relationship. Given the nature of the foster care system, it was impossible to envision a foster
parent-foster child relationship that would justify treating foster children on par with biological and
adopted children for inheritance purposes.
Wyo. Stat. Ann. § 2-4-104 (1977)
Persons of the half-blood inherit the same share they would inherit if they were of the whole blood,
but stepchildren and foster children and their descendants do not inherit.
Currently, people are creating families in non-traditional ways. Stepchildren are becoming
totally integrated into families and foster children are remaining in the same home during most of
their time in the system. These changes have enabled stepparents/foster parents to bond with
stepchildren/foster children. As a result, the law has begun to recognize and respect those
relationships. The consequence is that, in some jurisdictions, stepchildren and foster children are
given the opportunity to inherit from their stepparents and foster parents. 37
5.3.2 Stepchildren/Foster Children may inherit if the necessary relationship exists
West’s Ann. Cal. Prob. Code § 6454
For the purpose of determining intestate succession by a person or the person’s issue from or
through a foster parent or stepparent, the relationship of parent and child exists between that person
and the person’s foster parent or stepparent of both of the following requirements are satisfied:
(a) The relationship began during the person’s minority and continued throughout the joint lifetimes
of the person and the person’s foster parent or stepparent.
(b) It is established by clear and convincing evidence that the foster parent or stepparent would have
adopted the person but for a legal barrier.
Estate of Claffey, 257 Cal. Rptr. 197 (Cal. App. 3d 1989)
SONESHINE, Associate Justice.
Monroe Thomas McKenzie and Janet Turner appeal a judgment denying them, as stepchildren of
Bessie Claffey, any entitlement to Claffey's estate. They contend the trial court prejudicially erred in
instructing the jury to find a “family relationship,” rather than a mere stepchild/stepparent
relationship, as a prerequisite to their intestate succession.
37
See Susan N. Gary, Adapting Intestacy Laws to Changing Families, 18 Law & Ineq. 1 (Winter 2000); Terin Barbas Cremer,
Reforming Intestate Inheritance For Stepchildren and Stepparents, 18 Cardozo L.J. & Gender 89 (2011).
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