Important legal issues arise when a couple have “his and her kids.”
Blended families are a reality for many, whether previous relationships ended through death, separation or divorce. Making plans for your estate takes time, and there are many different scenarios to consider. Often it takes more than a Will to articulate your wishes.
Culos says one of the greatest challenges arises upon the death of one of the parents. Under BC law, every person who is in a spousal relationship has a duty (subject to certain limitations) to support their spouse. Accordingly, it’s difficult for a person to successfully cut a spouse out of their will.
The situation with children has its own requirements. Where a person has a child with a disability (due to age, illness or disability) it’s difficult for that person to successfully cut that child out of their will.
However, where children are able-bodied adults, the scenario is a little different.
In this case, the parent has a moral – but not a legal – duty to consider the needs of their adult children. Note that “consider” doesn’t necessarily mean “to provide for.”
People are free to name – or exclude – anyone as a beneficiary in their Will.
However, under the Wills, Estates and Succession Act of BC, a spouse or a child (biological or adopted, but NOT a stepchild) can make an application to the Supreme Court on the grounds that the Will of their spouse or parent did not adequately provide for them.
If a family member files a lawsuit, there’s a very real possibility that the Court will make an order changing the distribution made in the Will. Spouses are often awarded a greater share of the estate on an application to the Court. Exceptions occur where the relationship was short, or where the needs of the surviving spouse are far less than those of the person’s children.
Various strategies can be used to defend a Will made in the context of a blended family:
1. If the couple owns a house, each parent can balance their duty to their spouse and their desire to provide for their own children by providing a life estate in the house to the surviving spouse and leaving the house (or their half of it) to their own children after the surviving spouse dies.
2. Where both spouses have sufficient assets of their own, each can leave their entire estate to their own children if they enter into a marriage agreement with their spouse.
Other strategies can help ensure assets don’t fall into the estate:
1. Major assets you want to go to the surviving spouse (and not to the children) such as real estate, bank accounts and investment portfolios, can be owned jointly by the spouses.
2. Some assets, such as RRSPs, RRIFs, TFSAs, segregated funds and life insurance policies are payable to a named beneficiary and not to the person’s estate.