Key Advocacy Issues

There are a number of compelling problems related to the law and stepfamilies.The article below overviews many of the key stepfamily advocacy issues:

Footnotes (in parentheses) are at the end of the article.

UNITED STATES LAW DEGRADES STEPFAMILIES

By Margorie Engel, MBA, PhD
President and CEO, Stepfamily Association of America
© Margorie Engel, 2003

Data indicates that a large percentage of the United States population is remarried. Remarried partners who bring children from a prior relationship create a stepfamily. One out of every three Americans is a stepparent, stepchild, stepsibling, or other member of a stepfamily.(1) "More than 4 out of 10 marriages in the United States involve a second or higher-order marriage for the bride, the groom, or both."(2) Using the 1990 census data, of the 46% of remarriages that created stepfamilies, 20% were remarriages for both husband and wife, while 11% were with a single woman and divorced man and another 11% were with a single man and divorced woman.(3) This leaves a small percentage to account for widows and widowers who remarried.

Put another way, approximately two-thirds of divorced women and approximately three-fourths of divorced men remarry,(4) and "most remarriages take place relatively soon after divorce."(5) It is important to recognize that stepfamilies are also formed in a first marriage when an unwed mother marries a single man who is not her child's biological father.

There does not seem to be general awareness of the differences between first and second marriages(6) or how laws and policies may be detrimental to stepfamily marriages. The fragility of stepfamilies(7) may have much to do with the agony of adults and children feeling as if they may not be up to the tasks facing them in a stepfamily when a sampling of appellate cases indicates our laws and policies may be hostile to stepparents and stepchildren.(8)

Ironically, one of the biggest challenges United States stepfamilies face is not in the home but in the courts and in Congress. We've put "family values,"(9) first marriage, and absentee fathers high on our list of priorities but stepfamilies aren't on the radar screen.

Increased incidence of divorce, remarriage, and the first marriage of previously unwed mothers, means the stepfamily has become an important resource for children in this country. But, for the most part, the stepparent/stepchild relationship is not regarded as a legal status(10) and this sends the legal message that the stepchild is the more marginal child. Once stepfamilies are on the radar screen, it will become clear that we must alter our laws and policies. If proactive stepfamilies don't participate in the shaping of family policies, the results are bound to affect all stepfamilies in disproportionate and negative ways.

The state may be to blame for many stepfamily problems because the state is responsible for the background rules that affect people's domestic behaviors and behavior is strongly influenced by external circumstances. Litigation has its limits as a policy-making tool or for resolving conflict, especially when the law is not reflective of the reality of stepfamily life.(11)

What appears on the surface to be a disconnect between stepfamilies and the legal system is more likely to be from structural issues having to do with the institutions of marriage and the family. Stepfamily legal and financial problems begin when lawyers and financial advisors seal the terms of divorces without much, if any, consideration that their clients have a life to be lived after the ink is dry on the separation agreements. These same lawyers and financial advisors often fail to ask the relevant questions when advising clients who plan to remarry and, instead, offer advice and counsel designed for first marriage couples when addressing prenuptial agreements, estate planning (retirement, trusts, wills), beneficiary status, and day-to-day money management in stepfamilies to meet the needs of husband, wife, children, and stepchildren.

Statistical Data

There is a definite need for more information about divorced families and stepfamilies but America has been going in the wrong direction. Closing the government offices that collected and tabulated data on divorce and marriage, including remarriage, was short-sighted. Our government continues to cut corners on having reliable data available when it is critical for the development of appropriate financial policies for families. We need statistical data that is independent and more comprehensive than that collected by insurance companies and academic researchers.

One way to rapidly gain important data about stepfamilies is to ask questions on marriage license forms about the age and sex of children from prior unions and current residential arrangements for these children. This would give researchers and policymakers access to more accurate information on the types of stepfamilies being formed as well as the number of children living in stepfamily households while recognizing that many children are members of two stepfamilies when both parents have remarried - one of which has never been counted by the United States Census.(13)

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Definitions of Family and Stepfamily

American law has no comprehensive definition of a stepfamily. The American Bar Association's Model Act Establishing Rights and Duties of Stepparents and the Census Bureau are two examples. The ABA tentatively defines stepparent as "a person who is married to a person who... has custody of a minor child."(14) The Census Bureau defines stepfamily as a "married-couple family with at least one stepchild of the householder present, where the householder is the husband."(15) How odd that both sources use custody as the differentiator when United States society emphasizes a continued connection between a child and both of the biological parents, not only for minors but for adult children as well.

Consider the Internal Revenue Code's treatment of stepfamilies. The Code points out that "(i)n computing taxable income, ... 'dependent' (is defined) to potentially (emphasis mine) include stepchildren, stepparents, and stepsiblings."(16) Also, the Code provides that a stepchild may (emphasis mine) enable a taxpayer to qualify as a 'Head of Household'." Finally, "under the rules for the Earned Income Tax Credit, 'child' is defined to include stepchildren, provided that the stepparent's residence is the stepchild's principle place of abode."(17)

"Neither the term stepparent nor the term stepchild is defined anywhere in the Internal Revenue Code or Treasury regulations."(18) Without defining a stepparent or a stepchild, the federal Internal Revenue Code is bound to reveal inconsistencies in the income tax treatment of the step-relationship. To accord stepparents uniformity in their legal obligations to their stepchildren, consistent federal income tax recognition of the stepfamily is necessary.

The Federal government should address inconsistencies within and between its branches. At the core, the United States needs a uniform and consistent definition of "family" and "family members" that includes stepfamily relationships - a definition of "family" that supersedes all prior interpretations in law, policy, or precedent. Thinking in terms of the plural families would be a good place to begin.

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Inconsistent Approach to Stepparent-Stepchild Relationship

The bias against stepfamilies has worked its way into laws and policies so the results, not surprisingly, confirm and reinforce existing bias. The federal government is inconsistent in its approach to the stepparent-stepchild relationship. For instance, federal programs define stepchildren differently from program to program and treat stepchildren differently from other children.(19)

Inconsistencies between state and federal policies continue to crop up in the course of ongoing marriages. We see this when federal policies presume stepparent income is available for stepchild support, especially for poor children and those requiring financial aid for college expenses(20) who are subsequently eligible for lower or no benefits even though the state places no legal financial obligation on the stepparent. This contradiction is a strategic maneuver that preserves federal funds and leaves the stepchild an all-inclusive family income as a measure of funds available for continuing education.

Family courts have been slow to accommodate people traditionally defined as outsiders.(21) The legal system has not broadened its concept of family to include stepfamilies. Even where there is limited consideration, our federal system does not require uniform treatment from one state to the next.(22) Treatment often depends upon whether you are married to the custodial parent or married to the noncustodial parent.

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More than Two Parents?

The courts have had difficulty accepting the possibility that it might be in the child's best interest to recognize one biological mother and one biological father AND, if the parents have each remarried, two sets of legal parents.(23) While it is true that the quality of relationships between stepparents and stepchildren vary from one family to the next, during a period of high divorce rates, unwed parenthood, couples living together without benefit of a legal document, and remarriages creating stepfamilies, it appears that we all are providing important support in rearing each other's children.

This era may be the perfect time to consider the value of legally recognizing that many of our children do have more than one set of parents.(24) The therapeutic community admonishes that there is more than enough love to go around. The legal community might serve family values better when it recognizes that a child can, and often does, have multiple parents.(25)

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Adoption Procedures

Under current adoption procedures in the United States, adoption severs the adopted child's connection to the biological parents for social and legal purposes.(26) In stepfamilies, most stepchildren maintain at least some limited connection with their noncustodial parent and relatives on that parent's side of the family. The state recognizes there is no practical purpose to severing that connection to the biological parent, however tenuous it may be, but has also put unnecessary legal barriers into place for a practical form of stepparent adoption.(27)

Instead of the traditional thinking about only two parents, a new form of adoption could untangle the quagmire of obligations, rights, and privileges between stepparent and stepchild. This new type of stepparent-adoption could occur automatically upon marriage to the child's biological parent but would not create a loss of the other biological parent's rights, obligations, or the child's inheritance eligibility. This form of adoption could legitimize the stepparent/stepchild relationship by recognizing that biology is not the sole determining factor of parenting. Stepparent adoption policies need to be based in the lived realities of stepfamilies.

In my work with children, they tell me that stepparents are not replacement parents; stepparents go into an entirely new slot on the family tree. Children are able to assimilate stepparents in this manner; it should be possible for adults to consider the wisdom of this practice.

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Financial Responsibility for Stepchildren

Because states have the right to make differing family laws, federal policy-makers cannot rely on state legislators to pursue a clear national direction regarding the rights and obligations of stepparents. For a transient population, this phenomenon creates difficulties. It is not easy for family members to always have a clear idea of their rights and responsibilities as they cross state borders. As a result, most couples aren't even aware of the obligations or limitations family law creates ( the default "prenuptial") and do not consider the legal aspects as they form new relationships.(28)

Children look to parents for emotional care, food, and financial support.(29) This "parents" is often a parent and a stepparent and not both biological parents. Yet our courts are inconsistent about whether child support should be required in stepfamily relationships where a stepchild has developed a psychological or emotional bond, a parent-child relationship, with the stepparent.(30)

Consider this example. How can we make sense out of a child being denied the opportunity to even apply for a college scholarship offered by her stepfather's social organization when he has been the only father figure she has ever known? "I married her mother when she was in diapers. How does a father tell his child of seventeen years that the VSCA does not consider him her father?" an irate dad shouted during our telephone conversation. "It's terrible to divide a family like this! I am still somewhat shell-shocked."(31) And yet, society and the law persist in thinking of stepparents as "temp parents."

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"Investments" in Minors and Adult Children

Our laws and social policies are framed in such a way that financial responsibility for children is generally only determined for children who are minors [typically under 18 years old in the United States although the 2000 United States Census uses age 17(32)]. Nevertheless, in our society, adult sons and daughters are also considered our children. Parents and stepparents make considerable investments in helping children over the age of majority to become independent educated professionals.

Conflict over college expenses is a common theme. Typically, our parents and stepparents are expected to pay for most or all of an adult child's wedding expenses, and they often provide financial help when adult children purchase their first home. Parental resources continue to pour out to adult children who are part of the boomerang phenomenon in which they return home to live.(33) To ignore these traditional financial obligations incumbent upon parents and stepparents in our society is a travesty.

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When Parent and Stepparent Divorce

To complicate a child's legal and financial security even further, "redivorce is somewhat more likely than first divorce."(34) While we have no data on the percentage of remarriage divorces that are stepfamily divorces, this marital cycle has a generally recognized detrimental effect on child support and leads to the question of whether the stepparent's obligation should continue past divorce from the stepchild's parent, i.e., be permanent (if it is to exist at all) or last only as long as the new marriage?"(35)

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Inheritance and The Law of Wills

Property ownership, beneficiary designations, and the probate code are the basic three elements in an estate plan.(36) The first two are controlled by the stepfamily members themselves; the probate code is prepared by the state and provides primary protection to the first marriage family.

While we can take legal steps to avoid having our estate go into the "default system" of the state's Probate Code (including name designations on assets, a prenuptial agreement, legally valid will, and trust instruments), a number of studies indicate that the majority of people die intestate, without a valid will. To avoid potential discomfort about discussing money matters, many adults in stepfamilies prefer to believe that the extended family members will Ado the right thing" by each other. That inheritance decisions, if left alone, will take care of themselves appropriately. Now there is a myth spelled M-E-S-S. The legal system has an opportunity, perhaps even an obligation, to improve on this do nothing position.

The recent revisions in the UPC (Uniform Probate Code)(38) were designed to bring the law in line with the contemporary view of marriage as an economic partnership. But the economic partnership exists in verbiage only; on this matter, there are no laws with teeth. As a result, by refusing to make a will and relying on the new intestacy laws, men(39) can severely limit wives' and stepchildren's financial beneficiary status.

It is important for stepfamily couples and their lawyers to be aware of the legal context regarding inheritance issues that face stepfamilies. The first problem revolves around ensuring that the property is distributed appropriately. This a process made more difficult when inheritance statutes and probate codes do not recognize the stepfamily as a valid family unit.(40) The law of wills embodies a general assumption that testators do not regard stepfamily members as family members, another legal impediment to stepfamily equality.

Incomprehensible to the layman is the Berge case. Sisters were seven and eight years old when they became Mr. Berge's stepdaughters and began using his name. He provided educational and financial support for the remainder of their childhood, referred to his stepdaughters as his girls, and continued to rear them after their mother died. He had made verbal statements that he intended to disinherit his blood relatives and to leave all of his property to the girls. When he died without a will, the Minnesota Supreme Court prohibited the girls from inheriting anything.(41)

The message, of course, is for couples in stepfamilies to execute legally valid wills. However, even when a stepparent has a valid will referring to stepchildren as their "children," a court may still focus on the bloodline. Bloodline was the primary consideration in a Washington case where a stepfather left a small bequest to five "children," four of whom were his stepchildren. Even though the five children were expressly named in the will, the court ignored the will bequests for the four named stepchildren,(42) despite the fact that the biological child had predeceased his father.

Inter-generational linkages are changing. We can look forward to sharing more years of adult life with all of our children and grandchildren (including stepchildren and stepgrandchildren) than ever before. Financial help flows mostly downward, from older to younger generations. Grandparents increasingly maintain family connections, especially when divorce has occurred. We must acknowledge the importance of inter-generational links in stepfamilies.

There is another practical reason it is important for our society to normalize the interconnectedness of people in all types of families, especially stepfamilies. One demographic study points to an important future role for stepchildren.(43) "Despite higher levels of divorce and a lower birth rate, boomers need not worry about being alone when they are elderly," according to this author.(44) He concluded that, "due to remarriage and the stepchildren resulting from it, just 3.8% of 70-85-year-olds in 2030 will have no close kin, only slightly higher than today's 3.1%."(45)

Anticipating that stepchildren will take care of elderly stepparents is an illogical assumption when our laws and policies do not provide full kinship status to the stepparent and stepchild relationship. Under current laws and policies, adult children might view and resent the fact that the assets their parent accumulated are being consumed by long-term medical care for a stepparent. This is more likely if it is a late-in-life remarriage or close personal bonds have not developed between stepparent and stepchild. If an adult stepchild is going to be officially called upon by society to perform financial care-taking for a stepparent, the hour is late to reverse that cruel twist of law and policy that denies the stepchild recognition as the stepparent's "child" for inheritance and all other purposes.

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Wrongful Death Statutes

Only a handful of states permit wrongful death awards to stepchildren.(46) However, the evaluation of a child's rights to survivorship benefits should be based on the best interests of the child, biological child or stepchild, and not based on some outdated conception of family relations that fails to acknowledge the stepfamily relationship.

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Death and Taxes

Another estate planning problem consists of minimizing taxes. Where there is a will, there is an inheritance tax. Tax codes often penalize stepfamilies.(47) Unless the statutes in question specifically provide a preferred classification for stepchildren - and most do not - they are "strangers to the blood" and are subject to the higher inheritance tax rates in the unlikely event that inheritance rights are recognized at all.

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Observations about Stepfamily Inheritance

Probate statutes for intestate decedents require developing presumptions. It is reasonable to make decisions based upon the wishes of property-owning individuals who are family members. The family has become a complex institution. In 1990, "5.3 million married couple family households contained at least one stepchild under age 18,(48) and this was 20.8 percent of all married couple family households with children.(49) The 2000 United States Census numbers indicate 17 percent of minor children are living in steprelationships and cites a number of 15,840,000 children.(50)

For the most part, intestacy laws appear to be based upon a dated and no longer valid assumption of family relationships. But the reality is that we don't know about the testamentary wishes of the majority of stepfamily members. There are no studies to indicate that they have been queried. We do know that even when strong evidence of loving family relationships exist, the blood relationship may be the sole consideration under the intestacy statutes.(51) We also know that steprelations are designated beneficiaries in wills and that, even with "clear to the layman" testator intent through gifts to stepfamily members, loopholes may be found to deny them the legal status of heir. In addition, antilapse statutes typically ignore the reality of stepfamilies.(52)

The broadly functioning definition of "family" in the United States requires that all parental and sibling family ties be biological. During a time when many individuals do not live in families with blood relationships,(53) a shift away from fixed laws that are premised on the biological family might be a good solution. While recognition of stepfamilies requires a shift away from the predictability of inheritance through bloodlines, we need to develop and adopt an inheritance evaluation mechanism that promotes greater fairness toward stepfamilies. By using biology to deny intestacy inheritance rights between stepfamily members, the intestacy statutes ignore the reality of modern family life.

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Summary

The laws that protected United States families in the past do not provide adequate protection to members of our stepfamilies today. A whole set of possibilities are restrained by a very limited world view of family relationships. The existing protection is not adequate for the adult stepfamily partner who relies on the financial marriage partnership, nor to the stepchild who is dependent upon the care along with the emotional and financial support of the stepparent. At the present time, the best (albeit inadequate) protection available is thoughtful and careful advance planning for the stepfamily members. Unfortunately, the consequences of making these plans under our existing laws and policies, with a lawyer who has either no knowledge or limited knowledge of stepfamily dynamics and needs (and most lawyers do not have this important knowledge), is still likely to create emotional and financial wreckage for stepfamilies in the United States.

Notes: (click to toggle notes)

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