There are three elements you need to consider about the status of your stepchildren or foster children when determining whether they can inherit your estate.
- Did the relationship begin during the person’s minority
- Did the relationship continue throughout the joint person’s lifetime
- Can you present evidence that establishes the stepparent or foster parent would have adopted the person but for a legal barrier
So, for example, if you can show that the biological parent refused to consent to the adoption of the minor child that would be proof of a legal barrier. But, if the step-parent or foster parent does not go through the adult adoption process after the child reaches majority then they do not meet the legal barrier test.
The law tries to interpret and concludes that if you did not attempt to adopt your step-child during your lifetime then perhaps you did not intend for your step-child to inherit your estate.
To avoid this issue you should go through the formal process of adopting your step-child or foster child even if you have to wait until they are adults.