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Can a Stepchild Inherit?

A recent case confirms the importance of making a Will/Trust when there is a stepchild. In the Estate of Martino, Nick Martino died without a Will. He had two biological children and a stepchild, Nick Zambito. The stepchild Zambito brought a case in the Probate Court to be treated as an heir of Martino with a share equal to the shares of the biological children. He won his case.

There is a provision in the Probate Code that says for purpose of determining heirship when there is no Will, a stepchild can only inherit if there was a parent-child relationship that began while the stepchild was a minor child and the stepparent would have adopted the child if not for a "legal barrier." (For example, the biological parent won't consent to giving up their own parental rights.) In the Martino case, the parent-child relationship started when Zambito was a child. Eventually, Zambito's biological father died clearing the way for the stepfather Martino to adopt Zambito. But, that didn't happen. When Martino died, the two-part test for Zambito to be treated as a child for purposes of intestate inheritance wasn't met.

But, in an unusual turn, the Court considered the parentage rules in the Family Code used for purposes of determining such things as the parent-child relationship in a divorce situation.

The Court considered the fact that Martino the stepfather and Zambito the stepchild had a close father-son relationship throughout Martino's lifetime, up to the end when Zambito accompanied Martino to his doctor's appointments. Zambito had little contact with his biological father and considered Martino his true father. For his part, Martino always referred to Zambito as his son. Martino openly held Zambito out as his natural son throughout Zambito's life.

The Court held Martino to be Zambito's presumptive parent under the Family Code rules. Having determined a parent-child relationship existed, Zambito was entitled to inherit from Martino's estate along with Martino's two biological children. The Martino case expanded the "pathway to intestate succession available to a stepchild." It is likely Martino would have been happy with the result. If only he had made a Will to express his love and wishes for Zambito. Or, if that's not what he would have wanted, all the more reason to say so – in a Will or Trust.

By Lisa C. Alexander, Esq.


Main Line: 310-395-6555

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