The typical construct of a modern family is increasingly becoming, more often than not, blended families. If you are one of the many with a blended family and considering creating or updating your succession or estate plan, it is important to discuss your family dynamic with your estate planning lawyer. Blended families may be treated differently under the law than a traditional nuclear family, and therefore estate planning can be valuable tool to ensure that your wishes are carried out upon your passing. Some considerations for blended families are described below:
Will-makers have an obligation under the Wills, Estates and Succession Act of British Columbia and at common law to “adequately provide” for their spouse or child in their will. If a will-maker fails to make adequate provision to their spouse or child (as determined in the court’s sole discretion), such spouse or child may apply to the court following the death of the will-maker for a variation of the will. A “spouse” includes married and common law spouses and “children” include biological and legally adopted children. This is a particularly important risk to consider with blended families and when a spouse or child is not included as a beneficiary in your will.
As you may have noted from the definition of “children” above, it does not include stepchildren. Therefore, if you wish to include your stepchildren in your estate planning, you must reference them by name (instead of including the “catch-all” of children). Additionally, if your biological child is adopted by someone else, they are no longer considered your “children” for the purposes of estate planning.
Please note that there are risks associated with spousal wills in the context of blended families. In the event that one spouse predeceases the other, the surviving spouse is legally entitled to change their will and disinherit the deceased spouse’s children. This risk is more significant if one spouse dies significantly earlier than the other as the surviving spouse may remarry and/or become estranged from the deceased spouse’s children. Please note that in the event that the deceased spouse’s children are disinherited, the deceased spouse’s children will not have legal standing to apply for a variation of the surviving spouse’s new will once he or she passes away.
It is equally important to make sure that your children are provided for as well. If you have chosen to leave all your assets to your children (or grandchildren, in the alternative) in your will and by way of beneficial designation of your investments and nothing to your spouse it is important to protect yourself in case circumstances change following your death. It is impossible to eliminate the risk of a will variation, there are a few options for mitigating these risks:
- Document your intentions: Proof of your intentions can help provide guidance to the court if your will is contested. This can be done by having our office prepare a statutory declaration (a sworn statement of facts) explaining why your spouse are not provided for in your will. In order to do this, we would require as many details as possible regarding this decision, your relationship, other forms of provision to your spouse or children, prior discussions, etc. Alternatively, you can prepare a written memorandum evidencing your intentions.
- Obtaining an acknowledgement: Although this would likely not be legally binding, it may be persuasive to the court if your spouse signs an acknowledgement confirming that they have been adequately provided for and are agreeable to your estate plan.
- Modify your current estate plan: By providing for your spouse either as a beneficiary in your will, surviving owner of an asset held in joint tenancy or designated beneficiary of an investment, it is less likely that they will be able to make a successful claim that they have not been adequately provided for. One possibility is including a sliding scale of compensation to a spouse dependent on the length of your relationship (Ex. X% per year that you are spouses).
If you are interested in creating or updating your estate plan (or would just like to know more information on estate planning), please feel free to contact one of our lawyers practicing in the area of estate planning and estate administration.
Author: Sasha Platz