Blended Families in Ontario: How Common-Law Parents Can Protect Their Partner and Their Children

If you're common-law living in Durham Region with children from a previous relationship, protecting everyone usually means separating two goals that a simple will can't handle on its own: making sure your partner is provided for, and making sure your children still inherit what's meant for them. Ontario law doesn't do this balancing for you. Without a will, common-law partners often have no automatic right to inherit at all, while an "everything to my partner" will leaves your children's inheritance entirely up to that partner's discretion.

In part one of our common-law estate planning series, we looked at Kate and Mark, a common-law couple who could not agree on who should raise their children if they both passed away, and who never made a will because of it. But many blended families face a different, equally difficult question - one that comes up long before anyone is thinking about a worst-case scenario.

Consider Priya and Dave. They have lived common-law for six years. Priya has two children from a previous marriage. Dave has no children of his own but helped raise Priya's kids for most of their lives. Priya owns the house they live in, purchased before she met Dave. She wants to make sure Dave can stay in the home if something happens to her, but she also wants her children to eventually inherit what she has built. She isn't sure how to do both.

This is one of the most common questions we hear from common-law parents: if you're common-law and have children from a previous relationship, how do you protect everyone?

Why Common-Law Blended Families Need a Different Estate Plan?

When both partners share the same children, an estate plan is often more straightforward - everything can simply go to the surviving partner, who is trusted to look after the children's interests later.

Blended families don't have that shortcut. Priya's children are not Dave's children. If Priya dies without a will, Ontario's intestacy laws do not recognize Dave as a spouse at all, and everything would generally flow to Priya's children - leaving Dave with no legal right to remain in the home, even one he has lived in for years. If Priya instead leaves everything to Dave in a will, there is nothing stopping him from later leaving those same assets to someone else entirely, including his own family, with nothing passing to Priya's children.

Balancing providing for your partner and protecting your children takes deliberate planning and it does not happen automatically.

What Happens If Your Children Are Minors?

If your children are under 18, a will can't simply hand them their inheritance outright - minors cannot legally control significant assets in Ontario.

A will can instead set out:

• A testamentary trust, which holds your children's inheritance and releases it according to terms you choose (for example, in stages at ages 21, 25, and 30, rather than a lump sum at 18). 
• Who manages the trust on your children's behalf until they are old enough to manage it themselves.
• Instructions for how funds can be used in the meantime, such as for education, health, or general support.

This is often where blended families run into a difficult question: should your partner be the one managing money meant for your children?

Who Manages Assets for Your Children?

Some parents want their partner to manage their children's inheritance, particularly where the partner has a close, trusted relationship with the children.

Others prefer to name a sibling, another family member, or a professional trustee instead. This can avoid placing that responsibility on a partner who may eventually remarry, face financial pressure of their own, or have a different view than you would about how the money should be used.

There is no requirement that your partner and your children's trustee be the same person.

You Don't Have to Choose Between Your Partner and Your Children

Everyone can be taken care of how you choose through proper estate planning. At McMurter & Associates, we build your estate plan around your specific family, rather than a generic will that wasn’t written with blended families in mind. 

Key takeaways:

• Common-law partners have no automatic inheritance rights in Ontario without a will.
• A will leaving "everything to my partner" doesn't guarantee children inherit anything later.
• Trusts let you provide for a partner without disinheriting your children.

Contact

Brian McMurter is a real estate and estate planning lawyer at McMurter & Associates in Whitby, helping Durham Region, Ontario common-law clients with estate planning.

Contact McMurter & Associates Monday to Friday, 9 a.m. to 5 p.m. at info@mcmurter.com or call 1 800 756 7138 or 905 666 9200 to schedule a consultation.

Disclaimer: This article provides general information about Ontario law and is not a substitute for legal advice. Please speak with a lawyer about your specific circumstances before making decisions about estate planning.