Article on Reforming Intestate Inheritance
Just as The Brady Bunch replaced Leave It to Beaver, blended families are replacing the traditional family in America, as the shift toward blended families places new tension on traditional intestacy laws. Almost two-thirds of all remarriages involve children, and studies estimate that more than one-half of all Americans have lived in, are currently living in, or will live in, a stepfamily. Blended families now comprise half the nation.
Unfortunately, although the characteristics of American families have changed, the law has been slow to follow. Currently, stepchildren and stepparents are “virtually excluded from intestate succession.” Intestacy statutes provide for the disposition of a decedent’s probate property when a decedent dies without a will or the will does not dispose of all the decedent’s property. The Uniform Probate Code (“UPC”) was drafted over thirty years ago, at a time when blended families were the exception rather than the norm. Article II of the UPC, addressing intestacy statutes and parent-child relationships, has not progressed with the changing demographics of American society. Few states acknowledge stepchildren in their intestacy statutes, and the states that have modified their stepfamily inheritance laws have failed to effect comprehensive reform. California, the first state to acknowledge stepchildren in its intestacy statute, is the most progressive state with respect to this issue, but even California does not allow stepparents or other family members to inherit from the stepchild. Thus, while a few states have tried, all have fallen short of adequately providing for a stepfamily in the case of intestacy.
The current stepfamily state statutes and UPC fall short of achieving the purpose of intestacy statutes: to satisfy the likely intent of the decedent of a blended family and care for his or her family. Given the high rate of divorce and the increasing frequency of parent-child relationships between stepparents and stepchildren, the UPC and state statutes should be revised to better meet the intent of many decedents with blended families and avoid the problems inherent in the current intestacy statutes’ limitations.
Part I provides a brief background of the current intestacy law in the United States, focusing on the UPC as the main source of law. Then, Part II discusses how the UPC and state statutes, except for California, do not have provisions that allow for stepchildren to inherit when the stepparent dies in testate. It then explores the California statute allowing for limited stepchild inheritance based upon a two-factor test but explains that this statute, while definitely a positive step forward, is inadequate to accurately reflect American society today.
In Part III, this Article proposes a statute consisting of a series of factors that courts can use to determine whether a parent-child relationship existed between the stepparent and stepchild for intestacy purposes. The proposed factors statute (“factors test”) allows states and the UPC to address the needs of the modern American culture of blended families by better effectuating decedents’ intent and by alleviating part of the burden placed on the state when it is charged with providing for the family of a decedent. While the factors test creates some administrative costs, the benefit of effectuating intent is served by requiring judicial intervention to determine whether a parent-child relationship existed between the stepparent and stepchild for intestacy purposes. Some state and federal legislatures and judiciaries already evaluate the parent-child relationship in other blended family contexts; therefore, applying the factors test for intestacy purposes is a natural extension of a body of law that already exists.