A foster child may come into your life through the court system, an agency, or your own extended family. However it begins, the relationship can grow into something deeply personal, with the unshakable feeling that this child is yours.
However, the law does not always see the relationship that way with regard to inheritance. If you pass away without proper estate planning, your state’s intestacy laws decide who gets your money and property. Under those laws, a foster child typically has no automatic right to inherit from youunless you have legally adopted them. Even when the foster child is a relative (kinship care), inheritance rights can be partial or nonexistent. When there is no written estate plan, such gaps can lead to heartbreak, confusion, and even conflict among the people you love most after you are gone.
An estate plan can ensure that a foster child is legally protected and provided for on your terms. With it, you can ensure that your foster child is yours in the eyes of the law every bit as much as in your heart. Without such a plan, they could be either thrust back into a government system that struggles to meet their needs or left to navigate adulthood lacking the resources and support you intend for them.
Fostering Good Vibes: Providing Love and Care to Children in Need
Ideally, we grow up in families that give us the care and nurturing we need to develop into healthy, well-adjusted adults.
However, hundreds of thousands of foster children are less fortunate. Many are raised in institutional care, where caregivers do their best but face challenges such as limited resources, heavy caseloads, and the emotional scars that children often carry from family crises.
In 2023, approximately 340,000 US children were in foster care. The most common reason for a child’s removal from their legal parents is neglect (not physical abuse), accounting for over 60 percent of cases, followed by parental drug or alcohol abuse.
These children often face significant challenges while in the foster care system. Beyond the trauma of being removed from their homes, many are moved from one placement to another, disrupting their education, friendships, and sense of security. They are also at a much higher risk for developmental delays as well as mental and physical health problems.
About one-third of foster children live with relatives, such as grandparents, aunts, or uncles, but remain in the state’s legal custody—an arrangement known as kinship foster care or “grandfamilies.” For every child raised in kinship foster care, 18 are raised by relatives outside the system.
Even if a child is placed with family, legal permanence and stability are far from guaranteed. Kinship caregivers often step in out of love but may face financial strain, as many live on incomes below the federal poverty level.Kinship and grandfamily caregivers also often face steep legal hurdles.Unlike parents, family caregivers do not have default legal rights and responsibilities with respect to the children they raise. The process of obtaining a legal relationship with foster kids, such as through adoption, legal custody, or guardianship, can be expensive and time-consuming and can disrupt family dynamics.
In addition, some states give financial assistance to unrelated caregivers only for children formally in foster care, not for informal kinship care arrangements by unlicensed family members, although that is beginning to change.
Whether related or not, foster parents who provide a loving, stable home offer a child a chance to escape the system’s instability and truly thrive. Their home becomes a sanctuary. However, without a clear estate plan, that sanctuary might not last; good intentions are not enough. Unless the foster parent puts clear legal directions in place, a child who has become part of a foster family may lose the support and security they have come to rely on if something happens to the foster parent.
Whom Can Foster Children Inherit From? The Legal Reality
Knowing whether a foster child has a legal right to inherit is an essential starting point for ensuring their long-term support—and the “why” behind the need for intentional estate planning.
The key lies in the legal relationship—or lack thereof—between the child and the parent. When it comes to inheritance, the law draws a clear, and sometimes harsh, line between foster children and biological or legally adopted children.
- Biological parents. In many states, foster children can inherit from their biological parents only if parental rights have not been legally terminated. Until a court formally ends the legal parent-child relationship, usually as part of the adoption process, the child is still considered the parent’s legal heir. As a result, the foster child may be entitled to inherit from the parent’s estate under state intestacy laws or according to that parent’s will or trust. However, once parental rights have been terminated, the child generally loses any legal claim to inherit from their biological parents.
- Foster parents. The bonds between foster parents and children can be just as deep as those in any family, but state default inheritance laws do not automatically recognize them. If foster parents do not have a will, a trust, or another estate planning tool that names the foster child as a beneficiary, that child typically inherits nothing, leaving their future support and security uncertain.
- Adoptive parents. Once a foster child has been legally adopted, they gain the same inheritance rights as biological children. Adoption creates a new legal parent-child relationship, which usually severs inheritance rights from the biological parents but guarantees the child’s right to inherit from their adoptive parents.
A note on family caregivers: Foster care provided by relatives does not guarantee inheritance. State intestacy laws typically follow closeness of kin. For example, a child under the care of a grandparent or an uncle may not be in line to inherit under default state rules. Instead, the inheritance would go to the next-closest relative, which may be a surviving spouse, child, or sibling. Family (and nonfamily) caregivers who step up must therefore undertake formal adoption or engage in proactive estate planning to guarantee the child’s inheritance and protect their interests.
How to Ensure That a Foster Child Inherits from You
Raising a foster child but failing to legally incorporate them into your estate plan is like nearing the end of a long journey together but then getting separated.
You may have spent years caring for them, and they may need that care to continue. Following is how you can sustain your support after you are gone and complete the mission you set out to accomplish when you brought them into your home.
Lay a secure foundation with a will or trust. Your will or trust is where you name who you want to inherit from you, including your children—whether they are your biological children, adopted children, or foster children. Clarity is important in every estate plan, but it is especially critical when it comes to foster children, who do not have the same automatic inheritance rights as biological or adopted children. A foster child may still inherit from their foster parents, even without a legal adoption, but only if they are named in the foster parents’ estate plan.
Customize how the inheritance is managed. Trusts give you the flexibility to outline exactly how the inheritance you leave a foster child is managed, giving you the flexibility to direct funds toward what matters most—such as education, counseling, housing, or other vital support that foster children may need more than their peers do. You can also set conditions, such as releasing funds only when the child reaches certain milestones or demonstrates readiness, which helps protect against financial missteps and ensures that your support has its intended impact. Every child is unique, and for foster children, a trust can provide thoughtful guidance and support tailored to their individual needs.
Choose a trustee who understands the child’s unique journey. A trust is a powerful tool in estate planning because it gives the trustmaker added control over managing inheritances. The instructions you include in your trust are the foundation, but the trustee—the person you appoint to manage and distribute the inheritance you leave behind for your beneficiaries—brings those instructions to life. You can decide how much (or how little) discretion the trustee has when making distributions. This person should know the child and what they have been through, including any unique challenges that may make their transition to adulthood difficult.
Be sure to address the question of who will care for your foster child if you pass away. While you cannot legally appoint a guardian for a foster child through your estate plan, you should include a statement of your wishes, naming the person you would trust to step in, so the court and child welfare agency can consider your voice in future placement decisions.
Work with an Attorney to Keep Your Care Going
You have taken the life-changing step of welcoming a foster child into your home. The journey comes with not only challenges but also deep rewards. While there are no “hacks” or shortcuts to parenting, there are ways to make things smoother for both you and the child in your care—now and in the future.
An estate plan is one of the most important tools you can create. It extends your love and legacy, ensuring that the time, effort, and sacrifices you have made as a foster parent continue to support the child even after you are gone. Your plan should address the differences between foster and adopted children, how inheritance works under the state’s default laws, financial considerations, and how to express your wishes about future guardianship.
In your heart, you see your foster child like a biological child. An estate plan allows you to legally recognize that bond, protecting the child’s place in your family. Talk to an attorney to learn how.
Call Santaella Legal Group, serving all of California, at (925) 831-4840, or reach out to us here.