Stepchildren in succession law across European jurisdictions – current landscape and legislative concerns

Abstract

In many European countries, over 10 per cent of families are blended families. However, national succession laws often do not recognize the factual relationships existing within blended families. Only a few jurisdictions grant children rights to their parent’s spouse’s or unmarried partner’s estate. This article identifies and groups the relevant provisions. An analysis of the provisions shows that stepchildren and children of an unmarried partner have very limited succession-law rights, and nowhere in Europe do they have rights equal to those of legitimate children. To facilitate a change, this article identifies and examines the aspects to be considered when legislating succession-law rights for children in blended families.

I. Introduction

The term blended families refers to families consisting of spouses or unmarried partners¹ and their children from previous relationships. This is a significant group among families in Europe. For instance, in Belgium, the Czech Republic, Estonia, France, Germany, Hungary, and Sweden, as many as to 10 per cent of all families are blended families.² Nevertheless, the factual relationships existing between the members of these families are not legally recognized in all areas of law. In particular, they are almost uniformly disregarded in succession law. In most European jurisdictions, the majority of statutory rights and claims provided for under national succession law are based on relationships established through birth, adoption, or marriage. Such relationships do not exist between all the members of blended families, especially between children and an unmarried partner of their parent. Moreover, even if stepparents and stepchildren are legally affinized through the marriage of the stepparent and the parent of the stepchild, their relationship is almost never recognized under succession law in Europe. Therefore, in the majority of European jurisdictions, children in blended families do not have any rights or claims to the estate of their parents’ spouses or unmarried partners unless they are provided for in the testamentary dispositions. European law and the law of the European Union do not come to the aid of the members of blended families in this respect, as succession law remains in the domain of Member States and equal treatment of children, stepchildren, and children of someone’s unmarried partner is not required.

The jurisdictions that grant stepchildren and children of unmarried partners intestate rights or claims to the estates of their stepparents or unmarried partners of their parents are a minority in Europe. The legal provisions granting these rights or claims are not only the exception, but also innovative from the European perspective. In addition, they are internationally unresearched. Thus, the first aim of this article is to show and analyse the relevant provisions adopted in European jurisdictions to determine and evaluate the legal position of children in blended families in succession law across Europe. Accordingly, the first part of the article starts with an analysis of the relevant provisions grouped according to the rights or claims for which they provide. This part concludes by stressing the very weak position of children in blended families under succession law in Europe. The second aim of this article is to remedy the current situation by supporting efforts to draft legal provisions granting succession-law rights or claims to children in blended families. Therefore, the second part of the article starts with a brief presentation of arguments supporting introducing intestate rights or claims for children in blended families with respect to the estates of their stepparents or of unmarried partners of their parents. It continues with a discussion of the aspects of the relationship existing between children in blended families and their stepparents or unmarried partners of their parents that should be considered when drafting legislation providing children in blended families with succession-law rights or claims. These aspects are determined based on research into the legal provisions currently in force in Europe.

None of the European jurisdictions provides a legal definition of stepchildren in succession law. Therefore, stepchildren are understood under succession law in the same way as in other areas of law, namely as children from a different relationship of someone’s spouse. It is irrelevant whether this other relationship was formalized. It is important, however, that the relationship between the deceased (stepparent of a child) and the parent of the child took the form of a marriage or the same-sex equivalent (eg, registered partnership or civil union). Children of the deceased’s unmarried partner are not considered to be the deceased’s stepchildren, but they create a separate category. The term children in blended families is used in this article to refer to both stepchildren and the children of someone’s unmarried partner.

The examined legal provisions providing children in blended families with succession-law rights and claims do not encompass all the legal provisions that are applicable to these children in the case of death of their stepparent or unmarried partner of their parent. For instance, in many legal systems, murder of a person close to the deceased (and this includes murder of a stepchild or a child of an unmarried partner of the deceased) constitutes grounds for disinheritance of the murderer (eg, in Poland³ or in Germany⁴). In some jurisdictions, a stepchild of the surviving spouse (eg, in Germany⁵) or a child of the deceased’s unmarried partner (eg, in Slovenia⁶) has a claim for maintenance against the surviving spouse or partner. Additionally, in some jurisdictions, stepchildren are subject to a reduced or no inheritance tax when they inherit from their stepparents (eg, in Germany⁷). Only succession-law provisions that provide children in blended families with intestate rights or claims of economic value to the deceased’s estate are considered further in this article.

II. Part 1. Rights and claims on intestacy

Only in a minority of European jurisdictions do stepchildren have intestate rights or can they file claims to their stepparents’ estate. Some of these rights and claims are also available to children of unmarried partners of the deceased.

1. Intestate rights

Intestate rights can be divided into rights specifically afforded to the deceased’s stepchildren and rights that children in blended families have due to living in a common household with the deceased.

Intestate Rights Specifically for Stepchildren

In three European countries, intestate rights are granted specifically to the deceased’s stepchildren, and these are North Macedonia,⁸ Poland,⁹ and the Russian Federation.¹⁰

In each of these jurisdictions, the legislation states under what circumstances, when and what a stepchild can inherit on intestacy from his or her stepparent.

Only in the Russian Federation do stepchildren inherit after a stepparent on intestacy without meeting additional requirements. In North Macedonia, stepchildren must live in a permanent community with the stepparent at the time of the stepparent’s death. A permanent community is defined as a ‘community which has lasted for at least five years and existed without interruption from the moment it was established […] until the death of the deceased’. In Poland, both parents of a stepchild (the spouse of the deceased and the child’s other parent, if any) must have predeceased the stepparent.¹¹

In all three countries, stepchildren can inherit only if certain relatives of the deceased do not inherit (are dead or deemed to be dead). In North Macedonia, this applies to the deceased’s descendants, parents and siblings. In Poland, it applies to the deceased’s spouse and any relatives closer than the deceased’s great grandparents, and in the Russian Federation to relatives no more distantly related than, eg, the children of a deceased’s great-aunts and great-uncles, or the children of a deceased’s cousins. In North Macedonia, a stepchild excludes the deceased’s grandparents and their descendants from inheriting¹², and in Poland¹³ and (in principle) in the Russian Federation¹⁴, a stepchild excludes the last municipality in which the deceased lived or the State Treasury.

In North Macedonia, in the absence of deceased’s descendants, parents and siblings, the estate is divided equally between the deceased’s stepchildren, foster children, stepparents, children-in-law and relatives that do not belong to an earlier order of inheritance and lived in a permanent community with the deceased. However, if the deceased was survived by a spouse, the spouse inherits half of the estate and the aforementioned persons inherit the other half of the estate. Thus, stepchildren can inherit from their stepparents with their parent. In Poland, the deceased’s stepchildren inherit equal shares of the entire estate. In the Russian Federation, the stepchildren share the estate with stepparents of the deceased and the persons the deceased maintained financially for at least a year before his or her death, are incapable of working and lived with the deceased in a common household.

There is no jurisdiction in Europe in which children are explicitly granted intestate rights to the estates of their parents’ unmarried partners.

Intestate rights of children living in a common household with the deceased

In six European countries, children in blended families inherit if they belong to the group of persons that shared a common household with the deceased, and the deceased also financially maintained them for a certain period directly before his or her death.

The questions of under what circumstances, in which order and which children in blended families can inherit are explicitly regulated in each of the six countries.

In all of the surveyed jurisdictions, children in blended families must meet specific conditions to become intestate heirs as members of a common household with the deceased. First, in all the jurisdictions, children in blended families must live in the same household as the deceased at the time of the deceased’s death.¹⁵ Secondly, in Albania, Belarus, the Czech Republic, the Russian Federation, and Slovakia, these children must live with the deceased in a common household for ‘at least one year before’ the deceased’s death;¹⁶ in Ukraine, this period is a minimum of five years.¹⁷ Thirdly, in all the discussed countries, children in blended families must have been financially maintained by the deceased.¹⁸ In Albania, Belarus, the Russian Federation, and in Ukraine, this implies that the person in question is incapable of working, ie, a minor or a person unable to work.¹⁹ In Ukraine, the support provided by the deceased must have been the only or the main source of livelihood for the dependant.²⁰ In the Czech Republic and Slovakia, it is required that the deceased covered all the needs of a child that is a member of a household or at least a significant (in the context of the case) portion of them.²¹ In these two countries, an alternative to financial dependency on the deceased is taking care of the common household during the required period.²²

The order of inheritance in which children in blended families—as members of a common household with the deceased—inherit differs between countries. In Albania, the Czech Republic, and Slovakia, they are in the second order of inheritance. That means that if the deceased did not have children, children in blended families inherit together with the deceased’s spouse and/or parents. In the absence of these heirs, children in blended families are in the third order of inheritance with the deceased’s siblings and/or their descendants (as well as with grandparents, in Albania). In Ukraine, children in blended families are in the fifth order of inheritance; therefore, they inherit only if the deceased’s spouse, children, parents, siblings, grandparents, uncles, and aunts, as well as an unmarried partner, are dead or deemed to be dead. In Belarus and in the Russian Federation, a child in a blended family inherits alongside the heirs designated in the earliest order of inheritance or alone if there are no other intestate heirs (no relatives of sixth or closer degree of kinship in Belarus and fifth or closer degree of kinship in the Russian Federation).

In all the surveyed countries, children in blended families, as members of a common household with the deceased, inherit a portion of his or her estate. In Albania, the Czech Republic, and Slovakia, they share the estate with other intestate heirs inheriting in the second or third order of inheritance. The proportion of their share depends on the number of eligible heirs. However, if they inherit with the deceased’s spouse, the spouse receives half of the estate and only the other half of the estate is divided among the other intestate heirs.²³ In Ukraine, the estate is divided equally between the persons in a common household with the deceased and any relatives of the deceased that did not inherit in earlier orders of inheritance but are the deceased’s relatives of at least sixth degree (that applies to relatives no more distantly related than, eg, the grandchildren of a deceased’s great-aunts and great-uncles, or the grandchildren of a deceased’s cousins). In Belarus and the Russian Federation, a child in a blended family (as a member of a common household with the deceased) receives an equal share (in Belarus, not more than one quarter of the estate) alongside any intestate heirs called to succession. If there are no other heirs, children in blended families inherit the entire estate, together with any other persons who meet the described conditions.²⁴

In addition, if a stepchild or a child of the deceased’s unmarried partner is eligible to inherit as a member of a common household with the deceased, he or she is entitled in Albania and in the Russian Federation to the mandatory family protection (reserved portion) even if testamentary dispositions state otherwise. In the Russian Federation, the size of the reserved portion is half of the intestate share; in Albania, it is the entire share.²⁵

2. Claims to the deceased’s estate

Children in blended families can file two types of claims to the deceased’s estate: a claim for inheritance, in the absence of other intestate or testate heirs, or a claim for maintenance.

Claims for inheritance

In England, Wales, Denmark, Ireland, and Norway, children in blended families can apply for a part or the entirety of the deceased’s estate even if they do not have intestate rights, if there are no testate or intestate heirs.

In Denmark, ‘persons who were brought up by the deceased as his step or foster children’ and ‘other persons […] who were close to the deceased’ can request the Minister of Justice to cede the inheritance in whole or in part to them.²⁶ In Ireland, if the Minister for Finance deems it proper to do so, the Minister may waive the estate in whole or in part in favour of any person, including a stepchild or a child of an unmarried partner of the deceased.²⁷ In Norway ‘[i]n special cases, the Ministry may, upon application, decide that all or part of the assets shall go to relatives or others who have been close to the deceased.’²⁸ In England and Wales, the residuary estate not inherited by any heirs goes to the Crown or to the Duchy of Lancaster or to the Duke of Cornwall. However, ‘[t]he Crown or the said Duchy or the said Duke may […] out of the whole or any part of the property devolving on them respectively, provide, in accordance with the existing practice, for dependants, whether kindred or not, of the intestate, and other persons for whom the intestate might reasonably have been expected to make provision.’²⁹

In all these jurisdictions, whether a child in a blended family receives anything from the deceased’s estate and what he or she may receive, depends on the decision of the relevant public authority, which is made based on the circumstances of the case.

Claims for maintenance

In Northern Ireland, England and Wales, children in blended families can claim maintenance from the estate of the spouses or unmarried partners of their parents. In these jurisdictions, the children can apply for maintenance irrespective of whether there are any intestate or testate heirs. This claim can be made by ‘any person (not being a child of the deceased) (…) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family.’³⁰ A court can make reasonable financial provision from the estate, if no such provision has been made in the child’s favour. The court can provide a child with ‘such financial provision as […] would be reasonable in all the circumstances of the case for the applicant to receive [his or her] maintenance’.³¹ The maintenance can take any form, from periodical payments to a portion of the estate.

3. Conclusions

Only in a minority of European jurisdictions do children in blended families have intestate rights or claims to their parents’ spouses’ or unmarried partners’ estates. In other words, they do not have them in the vast majority of European jurisdictions.

In practice, in the majority of European countries, children in blended families have rights to their parents’ spouses’ or unmarried partners’ estate only if it were so stated in a testamentary disposition. It is rare that children in blended families are the deceased’s statutory heirs. Even if children in blended families are the deceased’s statutory heirs, only in Albania and in the Russian Federation is their inheritance protected under mandatory family protection. Thus, even in the countries in which children in blended families have an intestate right to their parents’ spouses’ or unmarried partners’ estate, in the majority of them, they can be effectively deprived of these rights in testamentary dispositions. It is noteworthy that all the countries that do provide intestate rights to children in blended families are located in Central and Eastern Europe.

The jurisdictions that provide children in blended families with claims to their parents’ spouses’ or unmarried partners’ estate are located in Western Europe. The success of these claims is either determined at the discretion of a state authority or depends on the child’s financial needs.

Even in the countries in which children in blended families have intestate rights or are entitled to file a claim to their parents’ spouses’ or unmarried partners’ estate, unless they were maintained by the deceased directly before their death or are in need of maintenance, they never receive anything from the estate if the deceased’s children inherit. Therefore, in practice, in most jurisdictions in which children in blended families have intestate rights to their parents’ spouses’ or unmarried partners’ estate, they inherit only if the deceased had no descendants, or they do not inherit. Thus, nowhere in Europe are children in blended families treated equally with the deceased’s natural (marital and extramarital) or adopted children.

In view of the above, the legal situation of children in blended families is very weak. They are granted rights or claims upon the death of their parents' spouses or unmarried partners in only a few European jurisdictions, and often only if additional conditions are met. In the majority of European countries, they have no rights or claims to the estates of individuals who were not related or affinized with them but stood in the position of a parent to such children.

III. Part 2. Drafting intestate rights

To improve the legal position of children in blended families under national succession laws, either family law or succession law needs to be reformed. The reforms of family law could involve, for instance, redefining the term child or parent or the rules on adoption and parenthood. However, it is also possible to reform only succession-law rules to provide stepchildren and children of an unmarried partner of the deceased with intestate rights or claims to their parents’ spouses’ or partners’ estates.

A combination of the arguments traditionally used to support (extending) intestate rights for a deceased’s spouse and intestate rights for the deceased’s children can be applied in the case of children in blended families if there is a factual child–parent relationship between the deceased and his or her stepchildren or the children of his or her unmarried partner. If the deceased stood in the position of a parent to such children: (i) the children and the deceased are likely to have had a closer personal and emotional relationship with each other than the deceased had with his or her distant relatives, (ii) the deceased is likely to have contributed to the maintenance of these children or even have maintained them, and (iii) the children are likely to have contributed to the common household themselves and their parent (a spouse or an unmarried partner of the deceased) contributed to this household as well.

The phrase likely to indicates that the existence and intensity of a relationship between members of a blended family can vary depending on the circumstances. Only if the relationship between the deceased and his or her stepchildren or the children of his or her unmarried partner shows that the deceased voluntary treated the children as his or her own, can the arguments presented above be used to support treating such children as falling under the rules of national succession law as children of the deceased as well. However, it cannot be assumed that their relationship is that close. There is no standard for a stepparent–stepchild or unmarried partner–child of his or her partner relationship that can be universally presumed. Moreover, there is a significant risk of temporality: the existence of any relationship between a stepparent or an unmarried partner of a parent and a child depends on the continuity of the relationship between the child’s parent and his or her spouse or partner.

The analysis of provisions adopted in jurisdictions where children in blended families have intestate rights or claims to their parents’ spouses’ or unmarried partners’ estates shows significant variation. Given the differences between jurisdictions in Europe, it is not possible to identify an optimal legal provision that should be universally applied for regulating the succession-law entitlement of children in blended families. Each provision should be adjusted to specific national succession law. Nevertheless, examining the provisions currently in place in European jurisdictions has enabled certain issues to be identified for consideration when drafting such laws. These concerns should be addressed in a manner that best aligns with each jurisdiction’s legal system. They include: the circle of people to whom the law should apply, the requirement for these people to be orphans, the requirement to live in a common household with the deceased for a certain period prior to the deceased’s death and how difficult this is to prove, the requirement to be financially maintained by the deceased, the need of this circle of people for reasonable financial provision from the deceased’s estate, the order of inheritance in which this circle of people should inherit, or (alternatively) claims they should have, entitlement to mandatory family protection, and the question of reciprocity.

1. Children in blended families as potential heirs

In the considered jurisdictions, legal provisions either explicitly name stepchildren as the deceased’s heirs, or they allow them to inherit if they belong to a more generally described group of people. Children of an unmarried partner of the deceased can inherit only if they belong to the second category. As the example of Czech law shows, in this category of countries, any person that meets the requirements set out in the relevant legal provisions becomes an intestate heir.³² Thus, this may apply also to stepchildren or children of an unmarried partner of the deceased if they met the required prerequisites.³³ To prevent a legal provision enacted to secure intestate rights of children in blended families from being applied to other persons, it would be advisable to explicitly list stepchildren or children of the deceased’s unmarried partner as the only persons entitled to inherit in a particular order of inheritance. Including the deceased’s foster children in this order of inheritance could also be considered.

However, the definition could be wider and—as in the discussed common law jurisdictions—refer to any person who is not the deceased’s child but in relation to whom the deceased stood in the role of a parent and who was treated by the deceased as a child of the family. Moreover, it could be considered whether the descendants of a stepchild and a child of an unmarried partner of the deceased should inherit in the place of their parent if he or she predeceased the deceased.

If the circle of potential heirs is defined as stepchildren, it should be noted that, in many jurisdictions, the legal affinity between a stepparent and a stepchild is not affected by the divorce of the stepparent and the child’s parent. Thus, if the application of a legal provision is not limited by any additional prerequisites, stepchildren from previous marriages are also entitled to rights or claims listed in the provision.

2. An orphan

Polish law requires that the parents of a stepchild of the deceased die before the opening of the deceased’s estate in order for the stepchild to inherit from his or her stepparent. This is a highly controversial provision.³⁴ One cause of controversy is that it is unclear whether it is sufficient that a parent of a child is deemed to be dead (for instance because he or she rejected the inheritance) or whether he or she must have died. Moreover, the purpose served by this requirement is unclear. Fulfilling it does not prove a close emotional and personal relationship with the deceased, nor does it identify the stepchild’s or his or her parent’s material contribution to the deceased’s estate. Moreover, the affinity existing between the stepparent and a stepchild is unaffected by the death of the stepchild’s parents. Furthermore, being an orphan does not automatically mean that a stepchild is in need of maintenance. It seems that the only benefit of introducing this requirement is its ease of verification and thus the avoidance of long evidentiary proceedings. However, granting an orphaned stepchild intestate rights to his or her stepparent’s estates—at least theoretically—allows part of the estate left by the child’s parent to his or her spouse to return to the child by inheriting on the death of the spouse of his or her deceased parent.

3. Living in a common household…

In countries in which children in blended families can inherit based on living in a common household with the deceased, the simple sharing of a residence (for instance in the case of a student dormitory) is insufficient. For instance, Czech and Slovakian law require each member of the common household to contribute to it either financially or by performing housework in accordance with his or her capabilities.³⁵ In fact, even though it is not explicitly stated in the legal provision, it is required that the members of the common household live like members of a family.³⁶ The same is required in Albania.³⁷ Adopting this prerequisite in a provision granting intestate rights to stepchildren and children of an unmarried partner of the deceased creates a presumption of the existence of a parent-child relationship between the deceased and the children in the blended family. It also decreases the probability that these persons did not have a relationship or that it was hostile.

If children of divorced parents alternate between households on different days of the week, to which household do they belong? For instance, Czech courts have consistently ruled that a person can reside in only one common household.³⁸ One of the consequences of this line of judgement is that a child cannot inherit from the spouses or unmarried partners of both of his or her parents. A rule alone recognizing that a child might belong to two households based on a court’s or the parents’ decision would allow the child to inherit from members of both households. This approach is more favourable for the children and potentially easier to implement, as it avoids answering the uncomfortable question of the household to which the child belonged.

4. …for a Specific Period of Time…

In countries in which persons living with the deceased in a common household inherit from the deceased, it is required that they have lived in a common household with the deceased for at least a year. Only in Ukraine is this period extended to five years. It can be safely assumed that the requirement of cohabitation for one year was adopted from Soviet law, from article 418 of the Code of the RSFSR of 1922 (all the countries that provided for intestate rights for persons living in a common household with the deceased were part of the Eastern Bloc).³⁹ There are no legal sources that lead to the conclusion that the decision to specify a period of one year rather than two or three years was supported by sociological studies or that alternative periods were comprehensibly considered.

On the one hand, the one-year period as a requirement for intestate rights for children in blended families may seem very short, especially if seen in the wider perspective. The only other members of informal (not legalized) relationships that have intestate rights and claims against each other’s estates are unmarried partners. However, in most of the jurisdictions that provide them with these rights and claims, their cohabitation is required to last for at least two or three years; a shorter period of time is accepted only if the partners have a child together.⁴⁰

Moreover, in some jurisdictions, eg, the Czech Republic, it has been suggested that interpretation of the required period should be flexible. Intestate rights of members of a common household should be recognized even if their relationship has not lasted a full year, provided all other requirements are met and—considering all the circumstances of the case—it would be inappropriate not to recognize their rights.⁴¹

In addition, at least in the Czech Republic, Slovakia, and Albania, any temporary physical absence from the common household that can be rationally justified does not discount the absent person from the common household, if the members of the household intend to continue living in a common household in the future.⁴² This applies to temporary absence for instance due to hospitalization or to pursue further education.⁴³ However, in the cases decided by Czech courts, the persons considered as potential heirs lived with the deceased for years before he or she left the household for an important reason. It is thus unclear whether a time of temporary absence can be counted towards the time spent together or whether it is just treated as non-existent.

On the other hand, even considering the observations made above, the one-year period does not seem that short, if the special circumstances of children in blended families are considered. If these children only started living with the deceased as teenagers and also spent time at a second home with the parent that was not in a relationship with the deceased, accumulating as many as 365 days of living in a common household with the deceased might in practice require a few years. Thus, at least in the context of stepchildren and children of unmarried partners, the required of a one-year period does not seem short.

5. …until the deceased’s death

In all countries in which inheritance is based on living in a common household with the deceased, it is required that the potential intestate heir remains in this household until the deceased’s death. It is natural that children grow up and leave their parents’ house to start their independent lives; thus, it seems unnecessary to require that children in blended families live in a common household with their parents’ spouses or unmarried partners until their death. As in the case of adult children, starting an adult life does not have to lead to the termination of a parent–child relationship between the children in a blended family and the person standing in the role of their parent, but may just influence its intensity. Thus, it should also not deprive these children of intestate rights.

Nevertheless, accepting that it is sufficient for a child in a blended family to have a parent–child relationship with their parent’s spouse or unmarried partner at any time in their life—as it is in the discussed common law jurisdictions—could be problematic. In most jurisdictions, children in blended families have no legal relationship with their stepparents or their parents’ partners. Thus, once the factual relationship between them ceases to exist, the basis for their intestate rights should also cease to exist. In other words, if the child–parent relationship ends because the relationship between the child’s parent and his or her spouse or partner ends in a way other than through death, neither a close personal and emotional relationship between the child and the unrelated person, nor any contribution of the deceased to the child’s maintenance or the child’s or his or her parent’s uncompensated contribution to the common household, can be assumed. Therefore, the inheritance rights of that child can no longer be justified. Moreover, in some cases, it could be difficult to identify all the children for whom the deceased acted as a parent throughout his or her life. Consequently, determining how many individuals would be entitled to intestate rights or claims to the deceased’s estate could introduce unpredictability and potentially prolong proceedings.

6. Difficulties with proving a factual relationship

If a factual relationship was to constitute a prerequisite for intestate rights or claims to an estate, it would put children in blended families in a weaker legal position in comparison to the legal position of the deceased’s relatives or spouse who only have to prove their legal relationship, and not their factual relationship, with the deceased. The burden of proof would rest with the child. As stressed in Czech legal literature, proving a factual relationship may often be difficult.⁴⁴ However, it seems unavoidable if the factual relationship was to constitute a prerequisite of intestate rights or claims on intestacy.

7. Financially maintained by the deceased

In many countries in which members of a common household inherit from each other, it is not required that the deceased had a maintenance obligation towards a person that he or she maintained, but only that he or she in fact maintained that person.⁴⁵ For instance, in the Czech Republic, it is required that the deceased covered all the needs of another member of the household or at least a significant (in the context of the case) portion of those needs.⁴⁶ However, the deceased does not have to be the only provider.⁴⁷

In Albania, Belarus, the Russian Federation, and Ukraine, a member of the deceased’s household must be incapable of working to inherit.⁴⁸ In Albania, it is accepted that such a person is unable to earn his or her own living and is dependent on the help of others.⁴⁹ Thus, in practice, in all four countries, for children in blended families to inherit as members of a common household, they must either be under the age of majority or unable to work.⁵⁰ This prevents capable adult children in blended families from inheriting from the deceased, which would automatically limit the applicability of the drafted provision to minors or disabled children.

8. In need of reasonable financial provision

In the discussed common law jurisdictions, children in blended families can apply for reasonable provision from the estate only if they are in need of maintenance.

This prerequisite means that the provision received by children in blended families can be adjusted to their actual needs, but it also forces a court to play a part in matters such as determining the existence of the need and the extent of the reasonable provision. This might be a significant disadvantage, especially in civil-law jurisdictions, in which a court’s part in succession-law proceedings is limited by adopting legal provisions applicable based on objective prerequisites.

9. Order of inheritance

In none of the countries in which children in blended families are intestate heirs do they inherit together with the deceased’s children. In fact, if the intestate share is granted specifically to the deceased’s stepchild, in the best-case scenario, he or she is in a comparable position to a relative of the deceased with a lower degree of consanguinity to the deceased than the deceased’s parents or siblings but closer than his or her grandparents. In many countries in which members of the deceased’s household are intestate heirs, the treatment of the deceased’s stepchildren and children of the deceased’s unmarried partner that lived with the deceased in a common household for at least a year until the deceased’s death is slightly worse than that of the deceased’s parents. The deceased’s parents can inherit alone in the second order of inheritance, while the members of a deceased’s household inherit alone only if there are no intestate heirs belonging to the third order of inheritance.

It seems that the order in which children in blended families should inherit should depend on the requirements that these children would have to meet to receive the inheritance. On one end of the spectrum, the requirements might be such that meeting them may imply the existence of a close emotional and personal relationship between the stepchildren or children of an unmarried partner and the deceased, lasting until the deceased’s death. In such cases, a stepchild or a child meeting these requirements could even be treated similarly to a child of the deceased. On the other end of the spectrum, the intestate right of stepchildren might be based solely on legal affinity. In such cases, the stepchildren could be treated as persons related to the deceased to the same degree or as relatives further down the line of succession. A close factual relationship between a child and his or her stepparent, or the unmarried partner of a parent, justifies the child inheriting instead of persons less close to the deceased.

Another question that should be considered is whether a child in a blended family should inherit together with his or her parent—a spouse or a partner of a deceased. If that was allowed then such a child would inherit directly from the stepparent or a partner of his or her parent and, potentially, indirectly, upon the death of his or her parent. To prevent that, a child should inherit from a stepparent or an unmarried partner of his or her parent only if the child’s parent—the spouse or the partner of the deceased—dies first. This ensures that the child inherits only either indirectly or directly, depending on whether his or her parent or the parent’s spouse or partner dies first. However, whether a child in a blended family should be prevented from inheriting both directly and indirectly from his or her stepparent or partner of his or her parent is a policy question. If the argument supporting intestate succession for a stepchild or a child of an unmarried partner is that the deceased treated that child like his or her own child, then it should be considered whether this child should benefit alike the deceased’s children.

Unquestionably, making children in blended families intestate heirs of their stepparents or partners of their parents will always lead to them inheriting from more than only their parents. In an extreme case, such children may receive statutory inheritance from both their parents and stepparents or their parents’ partners. That may seem unjust if succession-law rights of children in blended families are compared with the ones provided to children in traditional families with two parents. Unlike the children in blended families, the children from traditional families inherit on intestacy only from their two parents. However, even in traditional families, the number of people from whom a person inherits varies depending on circumstances including the number of a person’s legal parents (eg, a person can have multiple legal parents if his or her parents died during his or her life and he or she was subsequently adopted), siblings and more distant relatives. Moreover, the number of people one inherits from is not as crucial as the worth of the inheritance received.

10. Claims to an estate

As an alternative to providing intestate rights, children in blended families could be entitled to file a claim to the deceased’s estate.

The first type of claims amounts to a request to the state to cede the estate to the applicant. To make this claim practically relevant, the number of potential intestate heirs must be limited. A long list of intestate heirs ensuring that an estate is inherited by a relative of the deceased would render such a claim practically irrelevant. Moreover, the relevant legal literature does not indicate that this kind of claim has substantial practical significance.

The other type of claim is a maintenance claim. Granting children in blended families a maintenance claim would require a court to hear each case individually. However, even if children in blended families were to become intestate heirs, the court’s role in succession-law proceedings might be indispensable. The need to involve a court depends on the specific requirements chosen for determining the intestate rights or success of claims of children in blended families. The degree and frequency of a court’s involvement in proceedings in which the entitlement of children in blended families is to be determined in a given jurisdiction must be aligned with this jurisdiction’s legal system.

11. Mandatory family protection

Certain intestate heirs are provided with mandatory family protection. In Albania and in the Russian Federation, persons sharing a common household with the deceased are also entitled to mandatory family protection. Depending on what rights children in blended families were to be granted under succession law, their right to mandatory family protection could also be considered. However, in typical situations, people form blended families because of their spouse or unmarried partner, and not necessarily because they wish to take on the role of a parent of their spouse’s or partner’s children. Thus, acting as a parent to someone else’s children should not necessarily impact that person’s freedom of testation. To prevent any limitations of that freedom, a person should have the option to opt out of his or her legal obligations under succession law towards children in blended families by making different testamentary arrangements without needing to prove particular reasons.

12. Reciprocity

Providing children in blended families with intestate rights or claims to their stepparents’ estates and estates of unmarried partners of their parents raises the question of whether stepparents and unmarried partners should have any rights or claims to these children’s estates. This reciprocity is provided for in North Macedonia,⁵¹ the Russian Federation⁵² and in all the countries in which members of a common household can inherit from each other.⁵³ This reciprocity is not excluded in Denmark and in Norway if a stepparent or an unmarried partner of a parent of a child can be classified as one of the persons ‘who were close to the deceased’.⁵⁴ In Ireland, this reciprocity is not excluded if ‘proper having regard to all the circumstances of the case’⁵⁵ and in England and Wales if there is a person ‘for whom the intestate might reasonably have been expected to make provision’.⁵⁶

Nevertheless, the arguments supporting intestate rights or claims of children in blended families to the estate of their stepparents or unmarried partners of their parents do not necessarily apply to providing these stepparents or unmarried partners with the same rights or claims. Thus, introducing a law that provides stepparents and unmarried partners with intestate rights or claims to their stepchildren’s or children of their unmarried partner’s estates cannot take place automatically. Specific arguments supporting adopting such laws must be identified.

IV. Conclusions

Currently, only a few European jurisdictions grant intestate rights or claims to children in blended families. A comparison of the relevant provisions reveals four distinct groups: (i) intestate rights for stepchildren, (ii) intestate rights for children living in a common household with the deceased, (iii) claims for inheritance, and (iv) claims for maintenance. An analysis of the relevant provisions shows that the requirements for children in blended families to become intestate heirs, the type of their entitlement, and its size vary across these groups.

Considering that blended families constitute a significant category of families, adopting legal provisions providing children in blended families with intestate rights or claims to the estate of the spouses or unmarried partners of their parents might be considered in further jurisdictions. However, any modification of succession-law rules so that they facilitate rights or claims for this group must be made after a thorough consideration of the circumstances of those who will receive new rights, those whose estate is being divided, and the potential impact of the proposed rules on the rights of other heirs and claimants. This observation is particularly important in the context of providing stepchildren and children of unmarried partners with intestate rights or claims to the estates of their stepparents or their parents’ unmarried partners. Typically, children of blended families have not been provided with intestate rights or claims to the estate of their parents’ spouses or partners. The legal and factual relationship existing between these children and the spouses or partners of their parents does not compare to any other relationship these spouses/parents typically have with any of their heirs or claimants. Therefore, introducing provisions that grant members of blended families new succession-law rights or claims would disrupt the current balance, which is based on inheritance through legal relationships established by birth, adoption, or marriage (but only for spouses).

Drafting legal provisions that grant intestate rights or claims to children in blended families requires determining the prerequisites under which they can exercise these rights or claims. However, not only providing them with new rights and claims, but also restricting their access to these rights and claims must be supported with arguments. Moreover, the importance of factual circumstances that need to be proven in court must be balanced with the desired degree of the court’s involvement in individual cases.

Conflict of interest statement. None declared.

Footnotes