Can a stepchild make a claim against an intestate estate if they have not been legally adopted?
Key Legal Issue
The central issue is whether a stepchild—who has not been legally adopted by the deceased—can make a claim against the estate of a person who died intestate (i.e., without a valid will) in Victoria.
Relevant Legal Principles
Entitlement on Intestacy
Under the Administration and Probate Act 1958 (Vic), the statutory rules of intestacy do not include stepchildren (who have not been adopted) as beneficiaries. The Act provides that, on intestacy, the estate is distributed to the deceased’s spouse/partner, children (including adopted children), parents, siblings, and other blood relatives in a prescribed order. Stepchildren are not included in this hierarchy unless they have been legally adopted by the deceased.
Standing to Apply for Letters of Administration
Similarly, stepchildren who have not been adopted are not entitled to apply for Letters of Administration in their own right as next of kin under the intestacy rules.
Family Provision Claims (Testator’s Family Maintenance Claims)
However, Part IV of the Act (Family Provision) provides a separate avenue. Section 90 of the Act defines “eligible person” for the purposes of making a family provision claim. This definition includes stepchildren of the deceased, even if they have not been legally adopted.
Case law confirms that a stepchild is a child of the deceased’s spouse or domestic partner, and the step-relationship continues after the death of the natural parent unless the relationship between the stepparent and the natural parent ended by divorce or separation before the stepparent’s death.
Application to the Question
On intestacy:
A stepchild who has not been adopted does not have an automatic right to share in the estate under the intestacy rules in Victoria. They are not considered a “child” for the purposes of intestate distribution.Family provision claim:
A stepchild (not legally adopted) can make a claim for provision (or further provision) from the estate under Part IV of the Act, provided they meet the eligibility criteria as a stepchild. The court will consider factors such as the nature of the relationship, financial need, and whether the deceased had a moral duty to provide for the stepchild.
Important Warnings
The success of a family provision claim is not guaranteed; the court will weigh the stepchild’s circumstances against those of other eligible claimants and beneficiaries.
The stepchild’s eligibility is lost if the relationship between the deceased and the stepchild’s parent ended before death (by divorce or separation).
Conclusion
A stepchild who has not been legally adopted cannot inherit under the intestacy rules in Victoria, nor can they apply for Letters of Administration as next of kin. However, they may bring a family provision claim against the estate under Part IV of the Administration and Probate Act 1958 (Vic) as an “eligible person” (stepchild), subject to the court’s discretion.
