Many are unaware that when a person gets married (or re-married), in many provinces a Will is automatically revoked. When preparing for a re-marriage, arrangements should be made to ensure that loved ones are provided for appropriately.
If a person dies without a valid Will, their estate will be distributed according to the rules of intestacy for the province in which they resided, which vary between provinces. In general, the rules direct that the spouse of the deceased automatically inherits an initial amount of the estate and all of their personal possessions (the “preferential share”). Depending on the jurisdiction, the intestacy rules may not consider a common law spouse to be a spouse.
There are further rules on distribution if the estate is valued over the preferential share, depending on which of the deceased’s relatives are still alive. This would treat all children who are blood descendants of the deceased the same, but would not include step-children or others the deceased may have intended to include in the division of their property.
Accordingly, it is essential to arrange for a new Will as soon as practicable after getting re-married. A Will can also be made in anticipation of getting married, in which case it may be necessary to incorporate a clause providing that the Will is done in contemplation of marriage and will not be revoked by it.
Regardless of whether or not there is a valid Will on the date of death, anyone financially dependent on the deceased while they were alive may have a claim for part of the estate. Anyone seeking so-called “dependent’s relief” should obtain professional advice before proceeding with this type of claim.
Providing for your family
When contemplating marriage, testators may wish to ensure that children from their first marriage and their new spouse are provided for, in addition to making any provisions for step-children, if desired. One option is set up a trust in the Will which allows the second spouse to benefit from the testator’s assets during their lifetime, with the certainty that children will receive the assets later on. It is also a good idea to have a plan in place for if the second marriage results in separation or divorce. A prenuptial agreement will protect some assets for the testator’s children in the event that the relationship breaks down.
A deceased spouse may have rights in respect of a home, even where they are not on title, through either family law rules or dependent’s relief. However, in most jurisdictions they will not have full rights to inherit the home unless specified in the owner’s Will. Accordingly, it is important to consider what is intended to be done with the home and to ensure those intentions are reflected in the Will and respect family law and dependent’s relief considerations.
Estate planning for blended families can be complex, and it is important to speak to a qualified advisor to make sure that pitfalls are avoided. With proper planning, the second spouse and children from both marriages will be protected and the testator can maintain control over how assets are distributed on death.
For additional information on estate planning after remarriage, please consult a TEP.