Inheritance law & blended families: how stepchildren inherit

From an inheritance law perspective, blended families are often complex. This is particularly true when it comes to the relationship between stepparents and stepchildren, because stepchildren are not considered in the statutory order of inheritance.

This article explains the current legal situation and explores possible solutions for individual family circumstances.

Traditional family structure vs. blended families

Statutory inheritance law has been based for more than 100 years on the traditional family structure: married parents with children from that marriage. For this situation, inheritance law still generally works as a default emergency rule, even though it is rarely the optimal solution.

This is not the case for blended families, where not all children are the biological children of both partners and where the parents may not be married. Under the statutory rules, unmarried partners in a blended family do not inherit from one another. Stepchildren also receive nothing under the law if a stepparent dies.

For many blended families, this legal situation does not reflect the close emotional bonds within their newly formed family.

Inheritance law and children in blended families

When considering whether stepchildren inherit in blended families, it does not matter whether the partners are married. For the purposes of statutory inheritance law, the decisive factor is the child’s biological descent.

Biological children and inheritance law

If a parent in a blended family dies without leaving a will, the statutory rules of inheritance under Sections 1924 et seq. of the German Civil Code (BGB) apply. All biological children of the deceased inherit, regardless of whether the parent had remarried.

Under the law, children from previous relationships inherit on an equal footing with children from the current blended family. Where statutory succession applies, all biological children – including full and half-siblings – form a community of heirs. If a child has already died, their own children take their place.

If the parents in the blended family were married and no will exists, the surviving spouse (the stepparent) also inherits alongside all biological children. The stepparent and the children therefore form a community of heirs.

Whether the partners were married mainly affects the size of the children’s shares. Under statutory law, the surviving spouse inherits up to 50% of the deceased spouse’s estate alongside the biological children, depending on the matrimonial property regime (for example separation of property or community of accrued gains).

Note: If a parent in a blended family wishes to prevent children from a previous relationship from inheriting, they must disinherit them in a will. Even in this case, the disinherited children generally retain a right to a compulsory share of the estate. This claim is directed against the heirs of the deceased, such as the community of heirs consisting of the new spouse and the children from the later relationship.

Stepchildren and inheritance law

Because statutory inheritance law is based on biological descent, stepchildren are excluded from the statutory order of inheritance.

Stepparents therefore need to consider an important question: should stepchildren inherit on an equal footing with their own children or other relatives?

If the answer is yes, there are two possible approaches.

Stepchildren can be named as heirs in a will, in which case they inherit in the same way as biological children. Alternatively, adoption places biological and non-biological children on an equal legal footing. Anyone who adopts their stepchild accepts that the adopted child will be treated as a biological child for inheritance purposes.

Important: In the case of adoption of a minor, the legal parental relationship with the biological parents usually ends. The adopted child therefore loses inheritance rights in relation to their biological parents. Depending on the family’s financial situation, this may be disadvantageous and should be carefully considered.

In both cases – whether through appointment as an heir or through adoption – stepchildren become full heirs and members of the community of heirs, with all associated advantages, such as the inheritance tax allowance of €400,000, but also with potential disadvantages, such as inheriting debts.

Note: Making stepchildren full heirs alongside biological children (and possibly a partner) reduces the shares of the other heirs and may create conflict. Less contentious ways of providing stepchildren with assets include lifetime gifts or testamentary legacies, as these do not make stepchildren heirs.

Excluding stepchildren from inheriting: prior and subsequent heirs

There are also situations in which stepparents do not wish stepchildren to benefit from their estate.

In principle, anyone who does not actively appoint stepchildren as heirs does not need to worry about them inheriting directly. However, certain situations may still result in stepchildren indirectly benefiting from the estate.

If the stepparent dies first and their partner inherits – either under statutory law or through a will – and the partner later dies, the partner’s biological children may inherit the partner’s entire estate, including the share originally inherited from the stepparent.

Example

A stepfather (SF) and biological mother (BM) are married under the community of accrued gains regime. Each has two biological children. SF dies without leaving a will. BM inherits 50% of his estate and forms a community of heirs with SF’s children. When BM later dies, her children (SF’s stepchildren) inherit her estate, including the 50% share originally inherited from SF.

Such outcomes can be prevented through a testamentary arrangement known as prior and subsequent inheritance. In this structure, the partner is appointed as a prior heir (essentially an heir for their lifetime), while other persons – for example the testator’s own children – are appointed as subsequent heirs who inherit once the prior heir dies.

Example

In the same scenario, SF appoints BM as prior heir and his own children as subsequent heirs. When BM dies, SF’s biological children inherit the remaining share of their father’s estate. The stepchildren inherit only from their mother, not from SF.

Actively structuring estate planning in blended families

Anyone living in a blended family is familiar with the everyday challenges of a new partnership and children from previous relationships. When it comes to estate planning, this family structure adds another layer of legal complexity.

If you want to leave assets to an unmarried partner, you must make explicit arrangements (see also our article “Inheritance aw & blended amilies: married and unmarried couples with children”). If you wish to include or exclude stepchildren from your estate, this must also be actively arranged through a will – regardless of whether the partners are married.

The difficulty is that both failing to make arrangements and making the wrong arrangements can lead to significant potential for disputes in this particular family situation. For this reason, it is especially important to obtain professional legal advice in order to understand the individual circumstances and put appropriate and legally secure arrangements in place.

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Frequently Asked Questions

Do stepchildren automatically inherit in a blended family?

No. Under the statutory order of inheritance, only biological and adopted children inherit. Without a will or adoption, stepchildren receive nothing when a stepparent dies.

Anyone who wishes their stepchild to inherit must name them as an heir in a will or adopt them.

What happens if a parent in a blended family dies without a will?

In this case, the statutory rules of inheritance apply:

• Stepchildren do not inherit from a stepparent under statutory law, as they are not included in the statutory order of inheritance.
• All biological children of the deceased inherit equal shares, regardless of whether they are from a previous or the current relationship.
• If the partners were married, the surviving spouse also inherits a share of the estate alongside the biological children – up to 50%, depending on the matrimonial property regime. If divorce proceedings have not yet been initiated in a previous marriage, the still-legal spouse may also inherit.
• Stepchildren do not inherit from a stepparent under statutory law, as they are not included in the statutory order of inheritance.

Can stepchildren inherit indirectly even if they are not named in a will?

Yes, this can happen. If the biological parent initially inherits all or part of the stepparent’s estate and later dies, their own children – who are the stepchildren of the first deceased parent – may inherit assets that originally belonged to the stepparent. This situation can be prevented by arranging prior and subsequent inheritance, for example by appointing one’s own children as subsequent heirs.