Yes, stepchildren can contest a will in three situations:
- If the stepchild is a beneficiary of a prior will
- If the stepchild is an intestate heir
- If there was an agreement made by the deceased to leave an inheritance to the stepchild.
Prior Will
A stepchild can contest a current will if named as a beneficiary in the prior will. In a typical will contest situation, the last will is challenged on the grounds of lack of capacity, undue influence, fraud, mistake, or coercion. If the contested will is thrown out of probate, the estate inheritance plan reverts to the next most recent will. If the stepchildren are not part of the prior will, they would benefit from the will contest. Even if a number of wills could be successfully challenged, the stepchildren must be named in one of the prior wills to have “standing” to make a challenge to a will. If all of the wills are knocked out, we revert to the law of intestacy, which only includes the biological descendants of the deceased, unless in one of the states that treats them as intestate heirs.
Intestacy
Stepchildren are included in the class of intestate heirs in Florida, where they are considered the last in line of intestate heirs. When someone dies without a will, the law of intestacy of the state where the person resided will control who receives the estate. Florida includes includes stepchildren as interstate heirs, but only if there are no other intestate heirs, i.e., no children, no parents, no siblings, no cousins, nieces, or nephews.
Agreement
Even if biological dad and stepmother makes their wills at the same time and the wills are identical in that both wills leave the estate to the surviving spouse, and upon the second to die leave the estate in equal shares to the biological and stepchildren, after the death of the first spouse, the surviving spouse can usually change his or her will to exclude the stepchildren. In most states, the concept of reciprocal wills or mutual wills making a binding contract to never change the wills is not recognized. Only if the wills specifically say that they constitute a binding contract not to change the wills can the mutual wills as such be enforced.
If a challenge is based on an agreement to leave a stepchild an inheritance, in most states the challenge is not to set aside the will, but to give a claim for damages against the estate that is enforced in a regular, civil-style, lawsuit.
So, if a stepchild has the standing to contest a will, there must be sufficient grounds to contest the will, such as undue influence, lack of capacity, duress, fraud, or mistake.
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