Wills and blended families can be a complicated topic. If you have any questions about this, please connect with us and we will be happy to help!
For the purpose of this blog post, a blended family is defined as a family that has two partners, where either one or both partners have children with a different partner.
Statistics Canada defines a stepfamily as one in which at least one child was the biological offspring or adopted child of only one of the spouses prior to the relationship.
As you can imagine, there are many factors to consider when estate planning with blended families.
Let’s look at a common scenario.
Tom and Chelsea are married. Tom has one child from his previous marriage. Chelsea has two children from her previous marriage. They both did not legally adopt each other’s children.
Tom and Chelsea have a simple Will. Tom’s Will states that after he passes, Chelsea would receive the entirety of his estate. If Chelsea predeceases him, Tom’s children would receive his estate equally. According to the law, Tom’s children do not include Chelsea’s biological children. Chelsea drafted her Will the same as Tom’s.
If Chelsea passes away, what happens to her estate? In this example, Tom would receive all of Chelsea’s assets and Chelsea’s children would receive nothing. Tom would be free to do what he wanted with Chelsea’s assets and he is not legally obligated to give anything to Chelsea’s biological children upon his death.
There are some circumstances outlined under the Law Succession Reform Act that are applicable here:
- Step children are not considered “children” in the eyes of the law under the Law Succession Reform Act.
- Under the Succession Law Reform Act, in the absence of a Will, your spouse at the time of your death will be the recipient of the first $350,000.00 of your assets. The balance will be shared between your spouse and children in a prescribed amount.
Let’s look at another example.
John and Joanne were married. They had two children together, Jack and Grace. John and Joanne are no longer together. Joanne has re-married Curtis. Joanne and Curtis live together with Jack and Grace.
If Joanne dies without a properly drafted Will, it can get very complicated. For the purpose of this example, let’s assume that Joanne passes away and she has an estate worth $500K.
In Ontario, Curtis will receive $350K plus 1/3 of the remaining $150,000.00. Jack and Grace each receive $50K. John receives nothing. This might be the wish of Joanne, but Joanne failed to name a trustee for her children’s inheritance so the court will decide who is responsible for the money, most likely an agency of the Province of Ontario. The children will likely live with John, if he is willing and able, but he will not receive the children’s inheritance from their mother even though the children will be living with him.
Curtis is the recipient of the majority of Joanne’s estate, which he is free to do with as he pleases. This includes his relationship with his new wife should he remarry. This money, which Joanne might have wished to go to her children, is now being passed to Curtis’ new wife.
Do you follow? It can get very complicated! Joanne’s wishes are likely not being carried out how she would have wished had she worked with an estate lawyer to draft a Will.
It is important to remember that your Will outlines much more that who is going to inherit your assets. Your Will also outlines:
- An executor – the person who is responsible for carrying out the Will.
- Trusts – setting up trusts for minor beneficiaries.
- Guardianship – specifically stating who you want to look after your children after you pass.
This article is intended as an informative piece about the subject. It should not be taken as legal advice. We recommend you connect with a real estate lawyer about your specific legal issue.
McMurter & Associates in Whitby has been providing estate planning services throughout the Durham Region for more than 30 years. We have the experience needed to provide you with expert advice for any of your real estate and estate planning needs.