Alexander’s Blog
-An Introduction to Estate Planning from a Catholic Perspective
Part I: Why should I come up with an Estate Plan?
Disclaimer: The author of this post is not an attorney. He does not hold himself out as
able to practice law and this post is not intended to apply the law to specific facts. If you
have any questions about your specific legal circumstances, you should contact a
licensed attorney in your state.
As the old children’s song goes, “you can’t get to heaven in a limousine ‘cause
the Lord don’t sell no gasoline.” We have all heard at least one homily emphasizing that
it is easier for a camel to pass through the eye of a needle than for a rich man to enter
the kingdom of God. 1 Catholic Clergy and those called to the religious life take vows of
chastity, poverty, and obedience. It is ironic then, that the inaugural post for this Catholic
blog will focus on and advocate for the practice of estate planning. It is true that we are
called to live in this world but not to be of this world. However, we are also called to be
good stewards of Creation. The Bible states that a good man leaves an inheritance to
his children’s children. 2 My goal in this post or series of posts is to discuss some of the
basics of estate planning and to explain some of the advantages of having an attorney
draft a comprehensive estate plan. I also hope to highlight reasons that younger
Catholics, especially those who are married or have children would benefit from having
a settled estate plan.
Although traditionally seen as an end-of-life set of documents, there are many
good reasons for Catholics of all ages to develop an estate plan and it is one of my
goals to encourage younger Catholics especially to begin the process sooner rather
than later. An estate plan or EP is a versatile tool that can provide many benefits, and a
well drafted plan can avoid contentious conflicts. EP’s can also be used to leave a
charitable gift to Catholic charities or aid organizations like crisis pregnancy centers.
Finally, EP’s can be used to ensure that minor children and dependent spouses are
provided for in the event of an unforeseen tragedy.
Legally, there are three ways that property passes upon the death of its owner.
Through Intestacy, a Will, or a Will substitute. Intestacy is the built-in estate plan that
exists in the absence of a Will or Will substitute. There are specific laws that govern how
a deceased person’s (also known as a decedent) estate will pass. For example, in
Virginia, if the deceased was married, his spouse would receive the entire estate,
unless he had children who were from a previous marriage or born out of wedlock. If the
deceased has no spouse, his children and then his parents would be next in the line of
succession, with further blood relations acting as later beneficiaries if the previous class
of beneficiaries did not exist. 3 It is important to know that if the deceased has no living
1 Matthew 19:24
2 Proverbs 13:22
3 Va. Code Ann. § 64.2-200, 201 (2025).
heirs, his estate will escheat to the State. This means that the state will take possession
of the entirety of his estate.
Intestacy provides a baseline for the decedent’s ability to determine how his
wealth and possessions will pass. However, it does not allow him to dictate specifically
which of his possessions will go to which child or who will receive how much.
Additionally, non-blooded beneficiaries such as stepchildren, friends, or charitable
organizations will not be able to receive any share of the decedent’s estate. Another
potential pitfall is that the individual who legally manages the estate, also known as a
personal representative, is court-appointed and may not be the same person that the
deceased would have chosen to manage his affairs. Intestacy also leaves no specific
provisions for the care of minor children in the event that both parents pass away before
they reach the age of majority.
Wills are probably the most famous form of Estate Plan that exist in the public
zeitgeist. Images of a bespectacled lawyer reading aloud the last will and testament of
John Doe to his family of hopeful beneficiaries waiting with bated breath to know what
they will get probably come to mind (although the formal reading of a Will is a practice
that is very rare nowadays.) A will is a formal document that is signed by the deceased,
who is known as the testator in this case, and that displays his intent for the distribution
of his property following his death. Generally speaking, the requirements for who may
make a will are very broad. For example, in Virginia anyone may make a will, as long as
they are not either a. An individual of unsound mind, or b. An unemancipated minor. 4
Wills are formal documents, and the testator is generally required to sign the document
directly, or have someone do so in his presence and at his direction so that it clearly
shows his intent. Additionally, in some states a will that is not wholly written by the
testator in his own handwriting must be signed in the presence of two competent
witnesses who are of sound mind and over the age of 18. 5
A Will offers the testator the ability to determine exactly how his estate will be
distributed upon his passing. There are typically three types of gifts that are made in a
Will. These gifts are known as bequests. Specific bequests give a specific item or set of
items to a named beneficiary. General bequests are usually in the form of money, and
finally residuary bequests give whatever remains of the estate, if anything, to the named
individual. There are multiple distinct advantages that Wills offer over Intestate
succession namely that the testator picks a specific individual to distribute his estate.
That individual has a better understanding of what the deceased is trying to accomplish
than a court appointed personal representative might. Additionally, Wills provide the
flexibility that allows a testator to leave part of or the entirety of his estate to a charitable
organization as well. Married couples with young children may also include a
guardianship provision in their wills, which specifies who will care for their children in the
event that both of them die before the children reach adulthood.
4 Va. Code Ann. § 64.2-401 (2025).
5 Va. Code Ann. § 64.3-603 (2025).
In conclusion, although Intestate Succession provides a default mechanism for
the transfer of wealth upon an individuals death, Wills provide greater flexibility by
allowing the testator to choose who will be responsible for administrating their estate
and distributing their property, providing the testator with the opportunity to make
charitable donations that they could not otherwise make, and providing young parents
with the ability to ensure that their children are properly cared for. It is important to note
that both Wills and Intestate Succession are part of the legal process that involves the
transfer of the title of property from the deceased to a new beneficiary, also known as
probate. The next post in this series will focus on types of nonprobate transfers that
avoid this legal process as well as some modern trends in the field of estate planning.
About the Author: Hailing from Novi Michigan by way of South Korea, Alex is currently a
second-year law student. He hopes to practice in the fields of Estate Planning and Real
Estate Law upon graduation and licensing. In his free time, he enjoys spending time
with his wife, reading, and discussing the Rule Against Perpetuities.
An Introduction to Estate Planning from a Catholic Perspective
Part II: Isn’t a Will Enough?
Disclaimer: The author of this post is not an attorney. He does not hold himself out as
able to practice law and this post is not intended to apply the law to specific facts. If you
have any questions about your specific legal circumstances, you should contact a
licensed attorney in your state.
In last week’s introductory blog, we covered the differences between Intestacy
and a Will or Will Substitute. This week’s entry will focus on two other documents that
can and should be part of every Catholic’s estate plan: The Advance Directive and the
Power of Attorney. Both documents are important because they will determine who has
the right to make legal and medical decisions for an incapacitated individual. Readers
should also understand the legal powers that are granted by each document and their
legal ramifications.
Agency and Incapacitation
Agency law is a complex subject and entire law school classes are dedicated to
laying out how a principal may grant power to his legal agent. For our purposes, it is
enough to say that the principal, in this case the person who wants to have an
Advance Directive or Power of Attorney drafted, will name a specific person capable of
making decisions for him in the event of his incapacitation. This person is referred to as
either an agent, or an attorney-in-fact. An agent owes specific legal duties to his
principal. He can be removed from his position and sued if he violates any of these
duties. On the flip side, his actions are legally binding for his principal. Any action that
the agent takes is treated legally as if the principal himself performed that action.
Incapacity is the legal term that refers to an individual’s ability to make their own
decisions. Incapacity can be temporary or permanent. In most cases, a showing of
incapacity is accomplished by getting a doctor to declare that the principal has been
incapacitated. Events such as strokes, serious accidents, or dementia can all trigger a
medical finding of incapacity.
Power of Attorney
A Power of Attorney is a legal estate planning document that can be used by the
principal to determine who will make decisions for him and manage his estate in the
event of his incapacitation. A common misconception is that the agent designated by
the principal is the Power of Attorney. The document is the Power of Attorney, the agent
is the Attorney-in-Fact. There are several types of Powers of Attorney. In less recent
times, a legal presumption existed that a Power of Attorney no longer had any legal
effect if the principal was incapacitated. Today, the legal presumption in most states is
for a Durable Power of Attorney, one that continues to exist even if the principal is
incapacitated. A second variation on the Power of Attorney is a Springing Power of
Attorney. Normally, a Power of Attorney is legally binding once it has been executed or
signed by the principal or at his direction. 1 A Springing Power of Attorney only takes
effect when the principal becomes incapacitated. This document allows a principal to
continue making decisions for themselves for as long as possible. The Springing Power
of Attorney only takes effect once a doctor determines that they are medically incapable
of making their own decisions.
So why should you choose to execute a Power of Attorney? Just like Intestacy,
where state laws create a built-in default for individuals who die without a will, there are
state laws that determine who can make decisions for an incapacitated party without a
Power of Attorney. Conservatorships are court-appointed positions that govern the day
to day responsibilities for an incapacitated individual. Guardianships cover the medical
responsibilities. However, just like a Will allows the Testator to choose who will be
responsible for distributing her property, a Power of Attorney allows the principal to
designate a specific agent who will be responsible for making decisions for them,
instead of relying on the courts to decide who will be responsible for things like their
medical care, their retirement plan, or their savings accounts. Additionally, court
appointments can take time. By keeping a Power of Attorney on file, you can ensure
that the person you want to take care of you is legally authorized to make decisions for
you as soon as you are incapacitated. Acting as an Attorney-in-Fact is a major
commitment, and anyone interested in having a Power of Attorney drafted should check
with their preferred agent before including their name in the document. Naming an
alternative agent in the event that the primary agent has been incapacitated or has
predeceased the principal is also a prudent idea.
Advance Directives
Advance Directives go hand in hand with Powers of Attorney. While the Power of
Attorney governs the day-to-day decisions for an incapacitated individual, an Advance
Directive lays out specifically their wishes for medical care and specific end-of-life
events. An Advance Directive also appoints an agent who is responsible for making
medical decisions for an incapacitated individual. Advance Directives are incredibly
useful documents because they allow someone to lay out all the treatments that they
want to receive long before they ever set foot in a hospital. Provisions in an Advance
Directive can govern which care options you desire to receive, from things like pain
medication to whether you wish to be intubated if it becomes necessary. Additionally,
you may place restrictions on the type of medical care that you do not wish to receive.
Advance Directives may also incorporate specific provisions that reflect the declarant’s
faith. For example, I have a provision in my advance directive that a priest be admitted
to administer the sacrament of Anointing of the Sick, and in the event of my death, that I
be buried following a Catholic funeral.
1 Va. Code Ann. § 64.2-1603
In conclusion, an Advance Directive allows you to determine the medical care
that you do or do not wish to have administered to you. It also covers specific end-of-life
provisions and allows the appointment of an agent authorized to make medical
decisions in the event of your incapacity. A Power of Attorney determines who will be
responsible for day-to-day. Both documents allow you the flexibility of choosing who will
be responsible for managing your affairs instead of waiting on the courts to decide.
About the Author: Hailing from Novi Michigan by way of South Korea, Alex is
currently a second-year law student. He hopes to practice in the fields of Estate
Planning and Real Estate Law upon graduation and licensing. In his free time, he enjoys
spending time with his wife, reading, and discussing the Rule Against Perpetuities.
An Introduction to Estate Planning from a Catholic Perspective
Part IV: Estate Planning and Spouses
Disclaimer: The author of this post is not an attorney. He does not hold himself out as
able to practice law and this post is not intended to apply the law to specific facts. If you
have any questions about your specific legal circumstances, you should contact a
licensed attorney in your state.
Last week’s post focused on trusts and other non-probate assets, highlighting
their benefits as well as their limitations. This week’s discussion will focus on leaving
property to children and spouses. The Catholic Church teaches that marriage is a
sacrament. Husband and wife are united as one flesh. The husband provides for the
family and the wife focuses on the needs of the children and the home. In a God-
honoring family situation, upon the death of one spouse, all his or her property becomes
the others. However, according to a 2014 study, 20% of Catholic adults have
experienced divorce. 1 Because divorce is an issue that affects many Catholic families, I
feel that it is proper to address the legal significance of divorce on an estate plan for a
married couple. The legal effect of other instruments such as prenuptial agreements will
also be discussed.
Generally, when a married couple establishes an estate plan, reciprocal Wills are
recorded for the husband and wife. These reciprocal Wills are identical documents that
leave everything that the couple owns to the surviving spouse. In the husband’s Will, the
wife will be named as the primary beneficiary of his entire estate. In the wife’s Will, the
husband will receive the entirety of her estate. Children can be named as alternative
beneficiaries but generally the opposite spouse is the beneficiary. The law sees divorce
as a severing of a legal partnership. Because of this, any Will or Trust that grants any
interest in property to a divorced spouse is treated as revoked by the divorce. For
example, if a husband had a Will drafted that gave his truck to his wife upon his death,
in the event that the two of them divorced before his death, the wife would no longer be
entitled to his truck. Similarly, if the husband had created a trust for the care of his wife
and children, upon their divorce the trust would be revoked, and the wife would not be
able to access any property placed into the trust (assuming that she had not also owned
it before the trust’s creation). For divorced couples with no Will, the entire estate will
pass through intestacy. Just like a Divorce revokes a Will or a benefit or property
granted by a trust, divorced spouses will not receive anything under the laws of intestate
succession.
So what happens to spouses that are married after one of them executes a valid
Will or to spouses that are not named in a Will? Thankfully, the English common law that
provides the foundation for the American legal system was once very closely tied to
Christianity. The drafters of the common law did not want spouses, especially women at
the time to receive nothing from their husbands. The Marital Elective Share or Forced
1 https://www.usccb.org/offices/public-affairs/catholic-marriage-and-family-united-states
Elective Share provides spouses that are not mentioned in a Will or are omitted as
beneficiaries in a Will with some recourse. The law will not let one spouse cut another
one out from receiving a share of their estate. In cases where one spouse
unintentionally leaves out the other or where one spouse attempts to leave nothing to
the other, the elective share stipulates how much of the deceased’s estate a spouse is
entitled to. A surviving spouse is entitled to up to 50% of the marital augmented estate.
This percentage increases based on the number of years that the couple was married. If
the deceased and his spouse were married for less than a year, she may receive up to
3% of the marital estate. After 15 years, the deceased’s spouse may receive up to 50%
of the marital estate. The marital augmented estate is simply the total sum of net
probate assets (assets that must go through probate court via either a Will or intestacy)
+ Nonprobate transfers to others + Nonprobate transfers to the surviving spouse +
transfers to others from the surviving spouse. 2
A surviving spouse mentioned in the Will may take either his or her share from
the decedent’s Will, or the Marital Elective Share. Additionally, there are three
allowances that she may take on top of anything she receives in the Will, by Intestacy,
or through the Marital Elective Share. The first of these is the Family Allowance, which
entitles the spouse and any minor children to up to $24,000 or $2000 per month for a
year. The Family Allowance is important because it takes priority over all debts and
claims against the estate, this means that the spouse and minor children will receive
their share before anyone else. 3 The second allowance if for exempt property. The
surviving spouse is entitled to up to $20,000 from the estate in the form of furniture,
automobiles, furnishings, appliances, or personal effects. If no spouse survives, minor
children are entitled to the same share. The exempt property allowance also takes
priority over all claims against the estate other than the family allowance. 4 Finally, the
surviving spouse is entitled to the homestead allowance, which grants the spouse up to
$20,000 for housing purposes. The homestead allowance has priority over all claims
against the estate but the family allowance and the right to exempt property. 5 It is
important to note that any surviving spouse may take these three allowances, not just
spouses who are left out of or inadequately provided for in a decedent’s Will. The
spouse of a decedent who dies intestate is also entitled to these allowances.
Although the Church teaches that men and women who desire to marry should
do so without withholding anything from the other, I could not find any specific church
teaching that forbids couples from signing a prenuptial agreement. It is the author’s
opinion that any couple thinking about signing a prenuptial agreement should have a
serious conversation with their spiritual advisor before doing so. This article seeks only
to point out the legal ramifications of a prenup, not to comment on their validity in the
church. Although they can be contested after signing, prenuptial instruments are
2 Va. Code Ann. 64.2-305.
3 Va. Code Ann. 64.2-309.
4 Va. Code Ann. 64.2-310.
5 Va. Code Ann. 64.2-311.
recognized legally as valid contracts. In Virginia, a prenup is enforceable provided that
two things have been done. First, the party signing the prenup must voluntarily agree to
do so. Any evidence of coercion may be used to dispute the validity of the contract.
Second, the party in favor of the prenup must fully disclose the assets they have in
writing to the other party. 6 A court may choose not to enforce an otherwise valid
prenuptial agreement if it would result in substantial hardship for the other party.
In conclusion, a divorce revokes any existing Wills or trusts that grant property to
a former spouse. The law prohibits any married person from legally neglecting their
spouse and a spouse that has been omitted from a Will or has not been adequately
provided for may take the Marital Elective Share, which entitles them to up to half of the
Augmented Marital Estate. Any spouse may also take advantage of three allowances:
the family allowance, the right to exempt property, and the homestead allowance.
Finally, although prenuptial agreements can be legally binding, the party signing the
agreement must do so voluntarily and the party requiring a prenuptial agreement must
disclose a full list of their assets in writing.
About the Author: Hailing from Novi Michigan by way of South Korea, Alex is currently a
second-year law student. He hopes to practice in the fields of Estate Planning and Real
Estate Law upon graduation and licensing. In his free time, he enjoys spending time
with his wife, reading, and discussing the Rule Against Perpetuities.
6 Va. Code Ann. 20-149, 151.
An Introduction to Estate Planning from a Catholic Perspective
Part III: An Introduction to Trusts and Other Nonprobate Assets
Disclaimer: The author of this post is not an attorney. He does not hold himself out as
able to practice law and this post is not intended to apply the law to specific facts. If you
have any questions about your specific legal circumstances, you should contact a
licensed attorney in your state.
In my inaugural post, I discussed the basic ways that an individual’s property
passes upon his or her death. Intestacy is the legal default provided by each state that
allows the spouse or next closest living relative(s) to inherit property. A Will is the formal
document that allows a Testator to determine exactly how his estate will be distributed.
In today’s blog, we will discuss the remaining alternative, the Will substitute. The rise of
Will substitutes as a vehicle for estate planning is a relatively recent one, gaining
popularity in the mid-20 th century until it was finally incorporated as a chapter of the
Uniform Probate Code, a model code developed to assist states with drafting legislation.
Most states have incorporated some form of the Uniform Probate Code into their
probate and nonprobate laws.
There are several different reasons that Will substitutes have gained such
popularity. The primary reason for their success is the fact that they allow the transferor,
the one who owns the property, to transfer it without needing to go through the probate
process. Although there have been reforms to probate proceedings and simple estates
often go through probate very quickly, more complicated estates can take a much
longer time, especially in the event of a challenge to the validity of the Will. Will
substitutes are nonprobate assets, meaning that the title to the property passes to a
beneficiary during the tranferor’s lifetime. Because this transfer of property occurs
before the transferor dies, probate court is unnecessary. A second benefit to a
nonprobate transfer is that there is no public record. When a Will is probated, the
proceedings are publicized, a nonprobate transfer allows the transferor more privacy in
managing the affairs of his estate.
There are five types of Will substitutes, and the average American is very likely to
have at least one. The first type of Will substitute is a pay on death or POD account.
Examples of POD accounts include joint bank accounts, savings accounts, and even
deeds to real property. Because the beneficiary is already listed on the account, there is
no need for the probate process to transfer title to the bank account upon the death of
the primary accountholder. A death deed functions in much the same way for real
estate. The property owner refiles a deed to the property naming a beneficiary to
receive it upon his death. The property remains in the owner’s control for the duration of
his life and passes without going through probate to the beneficiary or beneficiaries. The
owner may take out mortgages, borrow against, or even sell the property, although the
latter option would void the rights of the beneficiary. It is important to note that for death
deeds, any outstanding mortgages or liens on the property will remain against the
property following the transfer. The second type of Will substitute is a transfer on death
or TOD securities account. TOD accounts function very similarly to POD accounts, but
account for things like stocks, bonds, and brokerage accounts. Just like POD accounts,
TOD accounts require that the owner name a beneficiary who has no access to the
account during the owner’s lifetime but receives the proceeds of the account upon the
owner’s death.
Life Insurance policies are a third kind of Will substitute. The amount dictated by
the policy is paid out to a beneficiary upon the death of the policyholder. Retirement
accounts or annuities make up the fourth type of Will substitute. Although some
retirement accounts such as specific pension plans are only paid to the policyholder,
more traditional accounts such as 401k and Roth IRA accounts pass directly to a
previously named beneficiary. The final type of Will substitute is a revocable inter vivos
trust. I plan to explore trusts in greater detail in a future post. For the time being, a
revocable inter vivos trust is a type of trust created during the lifetime of the owner. It is
created for a beneficiary and can be revoked by the owner at any point in his lifetime.
Although there are multiple types of Will substitutes, each one follows a common
theme, only certain types of assets can be transferred by using Will substitutes. An
estate may have multiple Will substitutes, but most will also require a Will or other
document to transfer property that is not subject to a Will substitute. Readers should
know that in the case of any conflict between the directions laid out by a Testator in her
Will and the designated beneficiary of a nonprobate account, the Will substitute, not the
Will determines who receives the benefits of the account.
A common estate planning trend is to create something called a Pour Over Will.
A Pour Over Will is a document that allows an individual or couple to simplify their
nonprobate estate plan. The testator creates a revocable trust. This trust is named as
the beneficiary of all the Testator’s nonprobate assets, lifetime transfers to the trustee,
and as a beneficiary of the testator’s Will. By creating a Pour Over Will, an individual
ensures that all assets that he owns will transfer into a trust upon his death. This
ensures that no assets are accidentally forgotten and forced to go through the probate
process. When drafted properly, a Pour Over Will can help ensure that property
transfers smoothly and as much of the probate process as possible is avoided.
In conclusion, Will substitutes provide an alternative to probate that ensures
property transfers quickly and privately. It also allows the owner to retain complete
control over the property until his death. Only certain types of accounts or policies are
nonprobate assets capable of transferring without probate and a Will or Pour Over Will
is generally also required.
About the Author: Hailing from Novi Michigan by way of South Korea, Alex is currently a
second-year law student. He hopes to practice in the fields of Estate Planning and Real
Estate Law upon graduation and licensing. In his free time, he enjoys spending time
with his wife, reading, and discussing The Rule Against Perpetuities.
An Introduction to Estate Planning from a Catholic Perspective
Part V: Children
Disclaimer: The author of this post is not an attorney. He does not hold himself out as
able to practice law and this post is not intended to apply the law to specific facts. If you
have any questions about your specific legal circumstances, you should contact a
licensed attorney in your state.
This week’s blog will discuss a few different legal implications that affect children
in estate planning. The legal effects of both intestacy and estate planning through a will
or trust on children will be examined in detail. Property that passes to adopted children,
stepchildren, or illegitimate children will also be covered.
In Intestacy, a decedent who is married will pass his entire estate on to his
spouse. In cases where the decedent also has minor children, the law presumes that
the surviving spouse will be best be able to look after their needs, and that any
remaining inheritance will pass to them upon her death. The decedent’s spouse will still
receive the entire estate in cases where the decedent’s children are adults. In cases
where the decedent has children that are not related to the surviving spouse, such as
through a previous marriage, or out of wedlock, the surviving spouse only receives one
third of the decedent’s estate while those children who are related to the decedent, but
not the spouse, receive the remaining two-thirds of his estate. Other states may vary in
manner in which the decedent’s estate is divided between the surviving spouse and the
nonrelated children. For blended families, a Will may make sense in order to ensure that
the surviving spouse will have enough assets to continue raising children.
A practical example might work something like this: Abe and Mary have four
children: Robert, Edward, William, and Thomas. All four children are under the age of
18 when Abe dies without a Will. Because all four children are related to Mary, she
receives the entirety of Abe’s estate, and the children do not receive anything until she
passes. However, suppose that Mary takes another husband, George, and has two
more children: Elizabeth and Katherine. Her estate passes differently. In this case,
assuming that Mary dies before George, her four children from her first marriage will be
entitled to 2/3 of her estate while George will only have 1/3 of her total estate to care for
their daughters. 1
There are several reasons that parents who have made a Will should revisit their
estate plan upon the birth of another child. An updated estate plan ensures an equitable
distribution between children and can eliminate conflicts and bad blood. Parents should
also know how the law treats adopted children and stepchildren for the purposes of
estate planning. The law treats children born after a Will has been executed as if they
were equal to any children born before it was executed. 2 Those children may take an
1 Va. Code Ann. 64.2-200,201
intestate share. Children born before the Will was executed, but not mentioned in the
Will, may take the lesser of an intestate share or the amount that any child who is
named in the Will receives. 3 It is only by expressly naming a child in a Will and either
refusing to bequeath any part of the estate, or leaving only a nominal amount that a
parent may disinherit a child via Will. Adopted children are treated legally as the children
of the adopting parent, and not the birth parents. This means that adopted children will
inherit from their adopted parents just as if they were naturally born and that adopted
children will not inherit from their birth parents. However, there is an exception to this
rule. A child adopted by a stepparent may inherit from both her biological parents and
her stepparents. 4 It is important to know that stepchildren have no legal rights in
intestacy. Because they are not blood relations or the spouse of the testator, they will
not receive any share of the estate upon the death of a stepparent unless the adoption
exception mentioned above applies. Stepparents who wish to include their stepchildren
in their estate plan should do so by specifically mentioning them in the Will.
Another estate planning consideration for parents is the class gift. A class gift is a
bequest to a group of people, also known as the class. More individuals can join the
class, but it closes upon the death of the testator. A class gift in a Will might read as “to
my children/heirs/kindred/grandchildren, or other words to that effect. Adopted and
illegitimate children are considered to be part of the class of “children”. However,
stepchildren are not. Anti-lapse statues are another important estate planning rule that
can affect children. In the English Common Law that American law is based on, a
devise or bequest in a Will to a beneficiary who died before the decedent lapsed or
failed. This meant that instead of going to the beneficiary or his blood relations, the gift
became part of the remainder of the decedent’s estate. Modern legal reforms have
instituted anti-lapse laws that instead allow the descendent(s) of a beneficiary who dies
before the decedent to step up and take the place of the deceased beneficiary. 5
For example, let’s suppose that Mary from our previous demonstration intended
to use her Will to leave the $80,000 in her savings account to Robert, Edward, William,
and Thomas, all of whom are grown and married with children of their own. However,
Eddie passes away before Mary does. Under the English Common Law, Eddie’s wife
and children would not inherit his share and Mary’s gift would lapse, becoming part of
the residue of her estate. Under modern anti-lapse statutes, Eddie’s children step up
into his place and receive the share that would have gone to him.
In conclusion, under intestacy, children inherit from a deceased parent only if
they are not related to the decedent’s spouse. In all other cases, the decedent’s whole
estate will pass to his spouse. Children born before a Will is made and not mentioned
may take an intestate share while children born after a Will is executed may take the
2 Va. Code Ann. 64.2-419
3 Va. Code Ann. 64.2-420
4 Va. Code Ann. 64.2-102
5 Va. Code Ann. 64.2-418
lesser of an intestate share or an equal share to children named in the Will. Adopted
children are treated as children of their adopted parents, but stepchildren are not.
Finally, adopted and illegitimate children are considered children when mentioned in a
class gift, but again stepchildren are not. Finally, thanks to modern anti-lapse statutes, a
deceased child’s descendants may step up and receive his share.
About the Author: Hailing from Novi Michigan by way of South Korea, Alex is
currently a second-year law student. He hopes to practice in the fields of Estate
Planning and Real Estate Law upon graduation and licensing. In his free time, he enjoys
spending time with his wife, reading, and discussing the Rule Against Perpetuities.
