Often, the most complicated part of estate planning is figuring out who you want to benefit from your estate. For blended families, estate planning can feel especially complicated – after all, you’re now dealing with more family members and more dynamics to keep in mind. Whether you are a longstanding member of a blended family or entering a new relationship (and possibly a new family unit), it’s important to think about the implications when creating your estate plan.
With Ontario’s Make-a-Will Month running throughout November, we’re covering the benefits of estate planning for individuals at various stages of their lives. Today, we’ll be talking about some of the unique considerations for estate planning in a blended family and why there’s no better time than the present to begin your estate planning journey.
The Inheritance Rights of Individuals in Blended Families
As a starting point, we’ll cover the legal rights of former partners, current partners, and stepchildren for estate planning purposes.
As covered in some of our previous posts, Ontario’s Succession Law Reform Act provides direction regarding how your estate will be handled if you die without a will. Typically, if your spouse survives you, they are entitled to your assets. If your spouse does not survive you, your children will be entitled to your assets.
These considerations become a little more complicated in blended families, as you may also be considering the rights of your former spouse, a common-law spouse, or stepchildren.
Former Spouses and the Succession Law Reform Act
Section 43.1 of the Succession Law Reform Act specifies that separated spouses cannot benefit from the intestacy rules. To be considered “separated” for the Succession Law Reform Act, the former spouse must have been living separate and apart at the time of the testator’s (will-maker) death and meet one of the following scenarios:
- The testator and former spouse lived separate and apart because of the breakdown of their marriage for three or more years before the will-maker’s death
- The testator and former spouse entered into a valid separation agreement
- The testator and former spouse have a court order settling their affairs because of the breakdown of their marriage
- A family arbitration award was made under the Arbitration Act, settling the parties’ affairs after the breakdown of their marriage
Common-Law Spouses and the Succession Law Reform Act
Common-law spouses do not have the right to inherit from an intestate estate under the Succession Law Reform Act.
Stepchildren and the Succession Law Reform Act
The Succession Law Reform Act defines “child” to mean a child conceived by the testator (either before or after death). However, s. 1(3) of the Succession Law Reform Act notes that, despite the legislative definitions, non-blood relatives (e.g., stepchildren) may be deemed to fit the description of a direct family member even though they are not a blood relative unless a contrary intention is expressed in a will. While the legislation suggests that a stepchild may be considered a “child” for intestacy, this assessment can become complex depending on the unique circumstances of the will-maker and stepchild’s relationship.
Key Takeaways for Individuals in Blended Families
Complications can arise when a member of a blended family dies without a will. For example, failing to address a separation or prepare a will can confuse the status of a former spouse or a stepchild. Furthermore, common-law spouses are not automatically entitled to inherit from your estate. The best way to ensure your loved ones are cared for is to prepare a will.
Important Estate Planning Considerations for Blended Families
We’ve talked about the challenges of dying without a will in a blended family. But what are the benefits of having a will in place? In addition to avoiding some of the issues we’ve flagged above, here are just a few reasons why blended families need a solid estate plan.
Guardianship for Your Minor Children
If you have minor children, you’ll want to ensure they are well-cared for if you and your partner pass away. Additionally, in a blended family scenario, you may have unique considerations regarding who will care for the children after you’re gone (for example, whether they will stay together). It’s important to consider the legal implications of guardianship in these circumstances, especially if any former spouses still have parenting rights.
Providing for Your Minor Stepchildren
Children cannot inherit property until they turn 18 in Ontario, and you will need to think about providing guardianship of property for your children (whether they are stepchildren or otherwise). You can appoint a guardian to care for your minor children’s property until they are old enough to do so themselves. You can also create a trust for your children, which holds the funds for your children for a certain period and can be executed in different manners. For example, you can dictate that the trust be paid out in installments or released to the child in a lump-sum payment at a particular time.
Providing for Your Current Partner
As noted above, common-law partners do not have the right to inherit from an intestate estate. If you are in a common-law relationship and have minor children, it’s critical to have a will in place to ensure your common-law partner is cared for after you’re gone.
If you are married to your current partner, you will still want to look carefully at your assets and policies to determine whether any designations need to be updated. For example, if you named your former spouse as a beneficiary on your life insurance policy, they may still be entitled to the proceeds of that policy even if you executed a separation agreement.
Providing for Your Former Partner
You can provide for your former partner in your will if you choose to do so. Depending on your wishes regarding the guardianship of your children, providing for your former partner may be in your best interests.
Additional Notes on Estate Planning for Blended Families
Estate planning for blended families can be a complex and, at times, emotional experience. It’s important for anyone creating an estate plan for blended families to consult an experienced estate lawyer to ensure they understand the respective rights of their family members and other legal issues, such as obligations to a former spouse or guardianship of minor children. Regardless of your situation, the best way to protect your family in the event of the unthinkable is to make your wishes known by creating your estate plan today.
Contact the Toronto Estate Litigation Lawyers at Derfel Estate Law for Guidance with Wills
If you need help with an existing will or are considering applying to challenge a will or to dispute a trust, contact the estate litigation lawyers at Derfel Estate Law before you proceed. We can help you determine whether you are eligible to bring such a claim, help you understand your options and rights, and represent you throughout the process. To find out how we can help, call our office at 416-847-3580 or contact us online to schedule a consultation.