banner-image

How Maryland Laws of Intestacy Affect Children

Maryland intestacy laws are used when someone dies without first having put their affairs in order and draft their last will and testament. However, the way these provisions are distributed are not always what the person would have wished. Intestacy laws can most certainly affect the child or children of parents who died intestate. To avoid this, it is important to visit a Maryland probate lawyer as soon as possible to discuss your last will and testament.

Reasons to Hire a Maryland Probate Attorney 

When an individual passes away without last will and testament or dies ‘intestate,’ there may be confusion regarding what individuals have priority to serve as a personal representative. In addition, without any estate planning, an individual may not have considered other issues that will plague his or her estate at death.

An attorney can assist with having someone appointed as a representative in the administration of the estate. In addition, an attorney can assist with marshaling and valuing all of the assets, preparing the inventory and the accountings and any other court reports that are required.

Obstacles a Probate Attorney May Face

Maryland Code Section 1 – 205 defines child as follows:

  • Subsection (A) In general a child includes – Subsection (A1) A legitimate child, an adopted child, illegitimate child to the extent provided in subsections 1206 through 1208 of this subtitle. Subsection (A2) Child conceived from the genetic material of a person after the death of a person if subsection A, subsection 2, subsection 4I, the person consented in a written record to use the person’s genetic materials for posthumous consumption and in accordance with the co-requirement of the section 20 – 111 of the health general article.
  • Subsection 2: a person consented in a written record to be the parent of a child posthumously conceived using the person’s genetic material.
  • Subsection 3: person was born within 2 years of a person’s death.
  • Subsection 4: with respect to the trust the person who was the creator of the trust and the trust became revocable after October 1st, 2012.
    • Subsection B: defines an exception which says the child does not include a stepchild, a foster child, a grandchild or more remote defendant.

Often when individuals consider stepchildren or other non-biologically related or adopted persons as children that ‘Child’ may not be recognized as ‘Child’ for intestacy purposes. This issue may arise with use of various fertility solutions as well in cases where one parent is the biological or adopted parent of a child. It is important to address any of these issues with a Maryland probate lawyer so that unintentional disinheritance may be avoided.

Adopted Children and Intestacy

Md. ESTATES AND TRUSTS Code Ann. § 1-205 defines child to include adopted child. Formally adopted children are removed from the inheritance lines of their biological parents and instead inherit from their adopted parents through the laws of intestacy.

Typically, children or heirs can only inherit from one bloodline. Of course, the biological parents may also provide for the adopted child by preparing a last will and testament that names their biological child. For example, if parent A has a biological child which she places for adoption and the child is adopted by parent B, the child is no longer entitled under the laws of Maryland intestacy to inherit from parent A. If parent A dies without providing for an adopted child then the child will likely not inherit. Adopted child may now inherit from parent B under the laws of intestacy. It may be prudent to speak to an Maryland probate attorney if someone has an adopted child or may adopt a child so that they can make sure that their estate plan incorporates the adopted child.

Illegitimate Children

Generally, when the issue of an illegitimate child occurs, the issue is whether or not a deceased father is the biological parent of a child who may be an heir to the estate. With regard to intestacy, it often means that there may be some ambiguity regarding the decedent’s heirs. The administration process may be more complicated and lengthy when issues of paternity are addressed. Due to the complexity and potential ambiguity of these situations, it is advisable to consult with a Maryland probate lawyer concerning inheritance issues.

When an Illegitimate Child Passes Away

Maryland probate lawyer -- laws intestacy illegitimate children

To understand how Maryland’s laws of intestacy affect illegitimate children it is helpful to look at the legal code itself.

Interestingly, if it is the illegitimate child that passes away, the Maryland code also addresses this in Section 3 – 108. Md. ESTATES AND TRUSTS Code Ann. § 3-108 states,

maryland probate lawyer -- illegitimate children laws of intestacy

Essentially, the father of an illegitimate child cannot inherit from an illegitimate child unless the father has been judicially determined to be the father, he acknowledges himself in writing to be the father, he openly and notoriously recognizes the child to be his child or has subsequently married the mother and has acknowledged orally or in writing that he is the father. Commonly, we can consider issues of inheritance and intestacy regarding an older generation passing assets to a younger generation, however, the issues can also be present when a younger generation dies without a spouse or children. Consulting a Maryland probate attorney can help clear away the ambiguities of this situation.

How This Affects Maryland Intestacy Issues       

With regards to intestacy, this means that there are complications and ambiguity in identifying the heirs of a decedent, which might require the help of a Maryland probate lawyer to address. For example, if an individual passes away and there is a claim that they have an illegitimate child or other children that have not been addressed or named as heirs, then there is a question as to whether those children have the right to inherit. Of course, such issues can be solved with proper estate planning. To prevent ambiguity and surprise heirs, an individual may choose to complete an estate plan that contemplates their specific family dynamic.

Stepchildren and Maryland Laws of Intestacy

In estate planning for a second or third family, it is important to address issues regarding the biological children of either parent from previous relationships. Maryland Code does not include stepchildren in the line of intestacy unless there are no surviving issues from the decedent’s parents, grandparents or great grandparents. Only in this case, when there are no surviving blood relatives, would a stepchild be potentially entitled to receive assets from their stepparents. In second family situations or where a testator wants to be sure to provide for a child or stepchild, proper estate planning becomes important so that the stepchild is included in the last will and testament or other trust documents.

How a Stepchild Can Receive Inheritance

There are two ways that a stepchild receive an inheritance. A stepchild can receive inheritance if a stepparent leaves the child or names the child as a beneficiary in his or her last will and testament or otherwise provides for the child or stepchild through trust documents or trust provisions.

A stepchild can only inherit through the laws of intestacy when there are no other surviving blood relatives of the decedent. For example, if stepparent A passes away and stepparent A does not have any parents, siblings, grandparents, aunts, uncles, cousins all the way up to the issue of the great-grandparents, only then may a stepchild inherit through the laws of intestacy. The likelihood of a decedent dying with absolutely no living biological heirs is uncommon, and therefore, the opportunity for  stepchild to inherit through the laws of intestacy are remote.

Benefits of Hiring a MD Probate Lawyer When Children are Involved

An intestacy lawyer or a trust attorney can possibly minimize any family disputes or assist generally with the administration of the estate. Maryland probate attorneys can advise the personal representative of his or her fiduciary obligations and assist in creating an estate plan for the distribution of the estate among the children.

In the event that someone has children or stepchildren, it may be prudent to speak with an estate planning attorney long before a catastrophic event and they can be sure that they create a comprehensive and up-to-date estate plan that provides for the unique family dynamics to include children or stepchildren.