The inheritance rights of children should be considered as they are one of the most vulnerable beings in our society. Due to changing family structures, inheritance law has been complex to deal with. This is especially the case with adopted children and blended families.
In this article, we’ll tackle the different types of children in our society and how the inheritance rights of children apply to them.
Modern Family Structures
1 – Children born of reproductive technologies
Mothers who are incapable of giving birth naturally make use of reproductive technologies. However, this may complicate the concept of who is the parent and who carries the responsibility of it.
New South Wales and Queensland legislation states that when a woman undergoes a fertilisation procedure, the partner is presumed to be the father of the child – given that he consents to the procedure. Now if a woman opts to produce a child using another woman’s ovum, the former woman will still be considered as the mother of the child.
In short, the parents who obtain the pregnancy and childbirth are the legal parents of the child, whereas the biological donors are not considered to be the parent of the child.
2 – Adopted children
Inheritance rights of children who are adopted are the same are related only to their foster parent and not with their biological parents.
3 – Illegitimate children
An illegitimate child is born to parents who weren’t married to each other at the time of the child’s birth. In the past, illegitimate children had no status in society. This posed concerns for parents who want to marry as this would affect the preservation of their legitimate child’s inheritance rights.
Given that the parents marry, later on, the child would still be considered illegitimate. Back then, illegitimate children didn’t exactly have entitlements under inheritance standards; now they just have the same rights as legitimate children!
A parent-child relationship can be understood if the child’s mother and father have been married in the relationship. Several states also modified their laws about the inheritance rights of children to favor illegitimate children the right to inherit through one or both parents.
4 – Stepchildren
In relation to modern families, adoption has been an option for everyone and is not really uncommon in our society. The inheritance rights of children may vary in each state but here are a few in Australia:
- In Queensland, stepchildren are regarded as the same as biological children for the purpose of eligibility to make a claim on an estate. The stepchild-stepparent relationship only stops after the termination of a marriage like divorces/separations. Given that the stepchild’s biological parent dies before the stepparent’s death, and that the relationship between the stepchild’s biological parent and stepparent existed at the same time, the foster relationship still continues
- In New South Wales, stepchildren do not share equal rights with biological children. Unlike in Queensland, stepchildren are not automatically eligible to inherit an estate. For them to be eligible, they must demonstrate that they were involved with or dependent under the same household of the deceased person.
Dividing Your Estate For Inheritance Rights Of Children
Bestowing your estate should be approached with caution especially when you’re considering inheritance rights of children. While there is the obvious option of equally dividing your estate to your children in your Will, it might not make sense to other families. If your Will includes real estate and other material assets, you’ll need to determine the value of each and decide what makes the most sense to leave to each child. Conflicts may arise between siblings when not handled properly, so let’s see when does it make sense to divide equally or differently.
In dividing equal amounts, consider these factors:
- Each child is emotionally capable and responsible
- Each child has similar needs and has received similar support from their parents
- No disability and serious illnesses
- Has finished their studies and are independent
- Financially responsible
Leaving different and unequal amounts is a difficult decision to make. Here are a few factors as well to keep in mind when doing so:
- One of your children acted as your caregiver and you want to compensate for their lost time and efforts;
- You’ve supported one of your children who needed the money at some point in their life and you want the distribution to be equitable, so you compensate the other children by giving them more;
- One of your children is unable to take care of themselves financially, emotionally, mentally, and physically;
- In cases of passing down a family business, you must decide on who is the more financially capable child and who is up for the task.
Inheritance Rights Of Children: Could A Child Sue For More?
Relationships between siblings can turn sour when we’re talking about the inheritance rights of children and when they’re not divided equally. How likely is the outcome of your division of assets to change in your Will? Changes may happen in your Will after you pass away because children can claim for more assets.
The children may contest at court that their parent was manipulated while writing the Will. Another way a will can be challenged is if they can prove that the Will-maker was mentally unable (lacked testamentary capacity) to complete the will leading to the different and unequal distribution of your assets.
Protecting Your Will With Legal Advice
As mentioned above, you should consider different scenarios, as nobody can be sure what could happen to their Will after they pass away. You wouldn’t want your children to be taking things to court as you only want the best for them. Siblings also need to be guided when facing this kind of possibility and know if it’s worth tearing down family bonds.
At JB Solicitors, we have family law experts who specialise in handling Wills and estate planning and make sure that the inheritance rights of children are also mediated under our service. Our fixed-fee prices ease your financial burden and help you plan your legal journey properly.
Talk to us today.