Grandparents Raising Grandchildren and the Implications for Inheritance

Abstract

Today in the United States, thousands of grandparents are raising their young grandchildren because the children's parents are ill, disabled, imprisoned, or otherwise unable to care for them. This can create problems if the grandparents have not done any estate planning, since intestacy laws mandate that children, rather than grandchildren, receive a decedent's assets in intestacy. This article offers an analysis of the statistical data on how many grandparents are raising their grandchildren, which is part of a broader trend of children being raised by non-parental relatives, or "kinship care." This data is further analyzed to determine the likelihood that these grandparents have estate plans. Then, the article discusses the posibility of expanding existing legal doctrines, including equitable adoption and pretermitted child statutes, to solve these types of problems. It also discusses the possibility of adopting a family maintenance system, already in place in New Zealand, Australia, England, and many Canadian provinces, in the United States. The article concludes by discussing what might be the best, and simplest, solution in this situation: having the grandparent either write a will or provide a gift under the Uniform Transfer to Minors Act (UTMA).

Keywords: grandparent, parent, child, estate plan, estate planning, kinship care, inherit, inheritance, equitable adoption, pertermitted child, family maintenance system, will, gift, Uniform Transfer to Minors Act, UTMA