A foster child may enter your life through the court system, an agency, or your extended family. No matter how it starts, the relationship can become deeply personal, with a strong feeling the child is yours. However, the law does not always see the relationship this way for inheritance purposes. If you die without estate planning, Texas residents will be at the mercy of Texas’ intestacy laws to determine who gets your money and property. Under those laws, foster children or step-children have no automatic right to inherit unless they are legally adopted. This is true even when the foster child is a relative (kinship care), inheritance rights may be partial or nonexistent. Without a written estate plan, these gaps can cause heartbreak, confusion, and conflict among loved ones after you’re gone.

The Importance of an Estate Plan

An estate plan can ensure that a foster child is legally protected and provided for on your terms. With it, you can ensure that for inheritance purposes, 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.

Challenges Foster Children Face

Ideally, we grow up in families that provide the care and nurturing we need to become healthy adults. However, hundreds of thousands of foster children are less fortunate. Many grow up in institutional care, where caregivers face limited resources, heavy caseloads, and children’s emotional scars. In 2023, the Adoption and Foster Care Analysis and Reporting System (AFCARS) estimated about 340,000 children in the US were in foster care. Neglect is the leading cause of removal, accounting for over 60% of cases, followed by parental drug or alcohol abuse. These children face many challenges in the foster care system. Beyond trauma from removal, many move between placements, disrupting education, friendships, and security. They also face higher risks for developmental delays and mental and physical health problems.

Kinship Care 

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, eighteen 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 grand family 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, time-consuming, and can disrupt family dynamics.

In addition, some states give financial assistance only to unrelated caregivers for children formally in foster care. Informal kinship care arrangements by unlicensed family members often do not qualify, although that is beginning to change.

The Need for a Stable Home

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. 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 Legal Relationship Matters

The key lies in the legal relationship—or lack thereof—between the foster-child and the foster-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. In Texas, children who are foster-children or who are adopted by foster-parents while they are minors, may still inherit from the estate of their biological family members. If a foster-children waits until they are age eighteen or older to be adopted by their foster-parents, the formal adoption will sever their ability to inherit from any of their biological relatives (parents, grandparents, etc.).  

• 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. In Texas, foster children are not considered to be descendants of the deceased, and have no automatic inheritance rights. This can leave them in the lurch, or dependent on the charity of their foster family.

• 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. In Texas, being adopted as a minor does not sever the right of an adoptive child to inherit from their biological family members. Though, biological parents may no longer inherit through the adopted child. 

A Note on Family Caregivers

Foster care by relatives does not guarantee inheritance. State intestacy laws usually follow closeness of kin. For example, a child cared for by a grandparent or uncle may not inherit under default state rules. Instead, inheritance goes to the next-closest relative, like a spouse, child, or sibling. Caregivers must legally adopt or create an estate plan to ensure the child’s inheritance and protect their interests. Raising a foster child but not including them in your estate plan is like separating near the journey’s end. You may have cared for them for years, and they may still need that care.

Here’s how to continue supporting your foster child and fulfill your mission after you’re gone..

Lay a Foundation with a Will or Trust

Your will or trust is where you name who you want to inherit from you, including your children—biological, adopted, or foster. Clarity is important, especially for foster children who lack automatic inheritance rights. A foster child may still inherit from foster parents, even without legal adoption, but only if named in the estate plan.

If foster children are still minors, trusts allow you to specify how inheritance is managed. You can direct funds for education, counseling, housing, or other vital support. You can also leave instructions for your successor trustees on the kinds of behavior to incentivize, such as pursuing education, home ownership, or entrepreneurial endeavors. Your trustee manages and distributes the inheritance according to your instructions. Choose someone who understands the child’s unique challenges. You can control how much discretion the trustee has.

While you cannot legally appoint a guardian for a foster child through your estate plan, it can be a good idea to include a statement of your wishes. Name a person you estate plan to step in, so the court and child welfare agency consider your voice in future decisions.

Work with an Attorney

You have welcomed a foster child into your home—a life-changing step with challenges and rewards. While there are no shortcuts to parenting, you can make things smoother with good planning. An estate plan is one of the most important tools you can create. It ensures your love and sacrifices continue to support the child after you are gone. Your plan should cover differences between foster and adopted children, inheritance laws, financial matters, and guardianship wishes. In your heart, your foster child is like your biological child. An estate plan lets you legally recognize that bond and protect their place in your family. Nielsen Law PLLC Provides family-focused estate and business planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area. For more information, and to learn about our firm, please contact us to learn how.