Who is a “Child” in Indiana Probate?

Video

Introduction

Good morning, it’s Andy Stautz with Stautz Law. I am back for another talk about Indiana probate and inheritance law. Today’s talk is very specific and it’s to answer the question, who is a child for the purpose of Indiana inheritance law?  

So… Kind of one of those issues that doesn’t seem like a big issue until you are at the margins, until you get to these close calls.  

So who’s a child? Obviously, an ordinary biological child to married parents, definitely a child.  

Statutory Definition

From there, it gets a little more complicated. We’ve got a definition in the law. So Indiana Code 29-1-1-3. Definitions. Definition (a)(1), the very first one: “Child includes an adopted child or a child that is in gestation before the death of a deceased parent and born within 43 weeks after. The term does not include a grandchild or other remote descendants, nor a child born out of wedlock, except as provided in IC 29-1-2-7.” Okay, that was mostly a direct quote. I left a couple things out.  

So if a child has been adopted, great, they’re, boom, legally a child for inheritance purposes. Because we’re in the probate code here, by the way.  

Doesn’t include grandchildren. Okay, that makes sense, but good to have it there. 

Does not include a child born out of wedlock, except it’s provided in this other section, 29-1-2-7. If we look at 29-1-2-7, it’s a way of kind of deciding who, like which line out of wedlock children inherit from.  

And it is, as you might suspect, gendered. So basically you definitely inherit from the mother; on the paternal side, only if paternity is acknowledged. That’s broad strokes. I don’t want to get into the details.  

Other Circumstances: Step-Children, Non-Adopted Children

Then you’ve got the weird question of, okay, that handles adopted children and handles biological children, both married and unmarried. What about not-adopted children? So what if someone comes and says, well, it’s a stepchild. Or it’s a person who lived in the house and was raised as a child, but wasn’t like wasn’t formally adopted and isn’t and has no biological tie.  

The answer in both of these cases, according to just the terms of the statute, is sorry, not a child. The Indiana Probate Code really is focusing on, you know, bloodline or legal formality. There’s no concept here of, well, we can decide that, they’re basically a child, we treat them as a child.  

Obviously, there are equitable arguments there. You know, you never really know, get lucky with the case law. Maybe there’s a way to sort of bring those other people into the orbit of the probate code. But it’s an uphill battle, right? The statute as defined doesn’t include those edge cases, even if socially or morally or whatever, we would say, oh yeah, it’s the person’s child.  

Avoiding Statutory Definition: Pick Your Own Heirs

So that’s pretty harsh. That’s a pretty harsh consequence, I think, in some cases.  

Fortunately, though, or the nice thing is, you can avoid that. You can avoid that by having a will or having a trust. Because remember, the probate code rules for what children inherit are just the default intestate rules. If you write a will, you can say, my stepchild gets, you know, shares equally with my biological children.  

Or, you know, John Doe, whom I have reared as my own, you know, is my sole heir. 

 Whatever you want to do. So that’s kind of the tension, right? The probate code, the default rules have to draw a line somewhere and you might not like where that line is. That’s why you do planning in advance.  

Conclusion

So hopefully that was helpful in just kind of discussing both the intestate situation and giving you one more great reason to make sure you’ve got a will. But general information about the law is not a substitute for legal advice. If you need an analysis of your situation or you want me to talk about your case, give me a call or e-mail me. You’re on my website. I hope that talk was helpful though. And that’s all I have for now. Bye.