In our cross-border family law practice, we have noticed an interersting phynomenon of foreign men marrying Chinese ladies with minor children. I appreciate the kindness of foreign husbands helping raise the children born by their Chinese wives from prior marriages. I mean this. It used to be and maybe still is a real hardship for divorced Chinese women with children, esp in terms of their chance of remarrying in China.
So what are the legal implications of raising a minor stepchild in China during the life of your remarriage? For example, when a step parent dies, will the step child have the right to inherit the estates left by the deceased step parent?
You may have never thought of this.
I. What Is the Law in China?
Article 1127 of China Civil Code provides that children, parents and spouse are the legal heirs who have the priority to inherit the estates of the deceased in equal shares in the case of intestate succession, and the third paragraph of this Article further clarifies on the scope of "children" providing that the term "children" include children born in and out of wedlock, adopted children and STEPCHILDREN WHO HAVE FORMED THE RELATIONSHIP OF SUPPORT WITH THE STEP PARENTS.
So the key in understanding the italic wording lies in what establishes the "relationship of support" between stepchildren and their step parents. Literally interpreted, it involves three scenarios:
(1) a step parent undertakes the responsibility in bringing up minor stepchildren;
(2) an adult stepchild undertakes the responsibility of maintaining a step parent; and
(3) a combination of both (1) and (2) between a stepchild and a step parent.
In pracrice, to prove the existende of such a relationship of support between a stepchild and stepparent, there are no clear guidelines from China Supreme Court or legislator. That said, if the stepchild and step parent have been living together on good terms for substantial period of time, say, a few years, then it is generally found that the relationship has been formed. The law doesn't require a clear intention of forming such a relationship to be necessary therefor. Apparently, in some cases, it can be really contraversial in proving the formation of such relationship.
II. Answer to the Captioned Question
According to this rule, where a step parent dies intestate or without a will, a stepchild is entitled to estates left by his step parent, provided that it can be proved that the step parent has contributed in supporting the minor stepchild after marriage despite that the stepchild has not been formally adopted by the step parent. In practice, it is generally not difficult to prove the formation of relationship of support and education if the stepchild, as a minor, is living with the step parent and there is no prenuptial agreement between the step parent and the biological parent in regard of separate responsibilities of raising the step child. The simple fact of living together as a family for a substantial period of time can suffice for that purpose of establishing the relationship of support.
As for adult stepchilds who have not been raised by the step parent, if they can prove that they have contributed in maintaining the life of their step parents, legally speaking, they are entitled to inherit the estates of their step parents in the case of intestate succession. But in reality, such adult stepchildren rarely take care of their step parents, thus not many disputes between them.
In short, as a matter of Chinese laws, a step child may be entitled to inherit the estates of their step parents if, in particular, they have been brought up by their step parents when they are minor children.
III. What if Step Parents and Bio Parent Divorce?
A sharp mind may have thought of a tricky situation: while a step child has been brought up by a step parent for years, at the time of death of this step parent, the step parent has already divorced the stepchild's bio parent, then could the stepchild be still entitled to the estates of the late step parent?
A good question indeed! But the good question is a difficult one to answer.
As you read the Article 1127 of China Civil Code, that clause doesn't really shed any light to this point. It is my personal opinion that in this case, such stepchildren shall not have the right to inherit the estates of their step parents unless the step parents have a valid will bequeathing estates to such stepchildren.
IV. Your Takeaways
If you are a stepchild and your step parent dies in China or dies outside China but with a real property in China, in the case of intestate succession, you may be entitled to claim a portion of the estates together with other heirs of the deceased.
If you are a step parent living in China and have real properties in China, be advised that it is best to put in a simple estate planning (write a will for your Chinese assets) in place to ensure your disliked stepchildren won't have a chance to take away your estates after you are gone.
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