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Idaho Probate and Estate Planning: What are the Rights of Stepchildren in a Probate

By Lane V. Erickson, Idaho Probate Attorney

There are few things that polarize family relationships as much having a parent pass away, especially when a mixed family is involved. When I say a “mixed family”, I mean a family that has parents, children and stepchildren from previous families. This becomes even more important when the surviving spouse passes away. In this instance, many times my clients ask me, what are the rights of stepchildren?

At the Racine law office, we have a team of premier Idaho probate attorneys who work with each client not only to create their customized estate plan, but also to help their families deal with their death and the probate process after they pass away. Our team of Idaho probate lawyers includes partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each of our attorneys have earned the highest rankings possible on several legal rating services. These services include AVVO, Martindale and Hubbell, and Justia, and are based on actual written reviews given by other attorneys, judges, and most importantly our current clients.

The rights of stepchildren when it comes to a parent passing away, are controlled by statute under Idaho law. The purpose of this article is to talk about what those legal rights actually are. We do this by first exploring whether these individuals are truly stepchildren or are something else. Additionally, we did discuss what happens when there is and when there isn’t a written Last Will and Testament for the person who passed away.

Please keep in mind that no article on this topic can be exhaustive. Rather, this article is designed to give you a starting place to understand how the law works in Idaho when it comes to how stepchildren are treated after a parent passes away. We offer a free 30-minute consultation where we are happy to discuss these items in more detail with our clients and answer their questions. We encourage you to contact us to schedule your free 30-minute consultation.

Are They True Stepchildren?

The starting place is to determine first whether in fact they are stepchildren or whether they are something else. This is defined specifically by Idaho law set forth in Idaho Code § 15-2-109. These statutes say in summary that if a person is legally adopted, then they are no longer a stepchild. Rather, after adoption, the adopted child is treated the same as a natural child.

Additionally, this statute defines a natural child to be a child who is born directly to a parent. If there are concerns about who the father is, paternity can be established through Court proceedings either before or after the father passes away.

So based on Idaho law, a person could be either a natural child that was born to the parent, or an adopted child who is treated the same as a natural child for that parent, or they are neither of these things. If they are neither of these things it’s possible they could be a stepchild, or could be another family member like a sibling or a cousin or the like that simply lives with the parent.

Is There a Written Last Will and Testament?

Determining whether a person is actually a natural child, and adopted child, or something else, is important because of this next section which discusses whether there was or was not a written last will and testament.

When there is a written last will and testament, the person who wrote the will has the ability to leave portions of their separate property to whoever they like. The person may leave their property to anyone and these people or individuals don’t necessarily have to be a blood relative of theirs. Rather, the person writing the last will and testament can leave gifts from their estate to anybody, including friends, family, charities, or even strangers.

Things are much different when there is no written last will and testament. When a person dies without a written will, they die intestate which just simply means they do not have a written will. When this occurs, the statutes determine who will receive the money, property, and assets from the estate of the person who passed away.

Priority is always given to a surviving spouse first. However, if there is no surviving spouse then the next level of priority includes children. This is where it is important to determine whether a person is a natural child, an adopted child, or something else.

In this instance, when there is no written will, a stepchild has no legal rights to receive any portion of the parent’s estate through the intestate statutes. In other words, natural children and adopted children are all entitled to receive portions of the estate. However, stepchildren received nothing.

If you have questions about your estate or the estate of a parent, and you are concerned about your status as a stepchild, we can help answer your questions. Please contact us for a free 30-minute consultation.

Enlist an Idaho Estate Planning Attorney to Help You

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a free consultation. You can also email us directly at or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.

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