If you are one of the many Canadians currently in a second or subsequent marriage or common law relationship (at least 1 in 4 Canadians are), then implementing a comprehensive estate plan is more important than ever, especially if one or both of you have children from a prior relationship, and/or if you have or may have children together. Failure to prepare to or revisit your Wills after a new marriage, separation, divorce, or other life change exposes blended families to the risk of several unwanted consequences.
Did you know…
- Marriage revokes a Will unless it was explicitly made in contemplation of such marriage; so, if you recently remarried, you may have no valid Will in place at all, and your estate would be subject to the intestate distribution scheme set out in the Succession Law Reform Act;
- Separation does not affect the validity or content of your Will; so, if you recently separated and your Will leaves anything (or everything) to your spouse from whom you’ve separated, he or she would receive whatever the Will provides;
- Divorce removes an ex-spouse as an executor and beneficiary of your Will but leaves the remaining provisions intact; so, if you recently divorced, the valid provisions of your Will would govern even though they may no longer reflect your intentions;
- If you have a domestic contract in place, such as a Separation Agreement, Marriage Contract or Cohabitation Agreement, the terms of such agreement would take precedence over the terms of your Will if there were any inconsistency; and,
- If you own property jointly with your ex-spouse or new spouse and you die first, it will pass directly to that surviving joint owner, and you would have no power to direct how it is dealt with upon their death (unless a domestic contract says otherwise).
Factors to Consider…
In order to avoid the undesirable outcomes set out above (which often lead to disputes and litigation), and to bolster the success of a new estate plan, members of blended families should contemplate – and if they are undertaking estate planning together, openly discuss – various crucial questions, including the following:
- Who are your financial dependants and what are their respective needs and/or legal entitlements?
- What property do you own individually, what property do you own jointly, and what are your intentions for each class of property?
- Do you want to leave assets outright to your new spouse knowing that, if you die first, they will have full autonomy over those assets, or would you prefer to provide a benefit to your new spouse through a trust and preserve those assets for your children?
- Will your estate plan mirror that of your new spouse, or depart from it significantly, making it more appropriate for each of you to have independent lawyers?
- Who are the most appropriate people to appoint as the executors and trustees of your respective estates?
At Mills & Mills LLP, our estate lawyers can help you navigate the complicated issues and questions that come up in the context of blended family estate planning and can help you craft an estate plan that fits your specific circumstances. Our family lawyers are available to work with you on the preparation of domestic contracts, where appropriate, as well. To learn more about how we may be able to assist you, please reach out to us online or by telephone at (416) 863-0125.