As the National Post has put it, stepfamilies are becoming the “new normal” in Canada. This is made evident by the fact that in 2011, the census counted stepfamilies for the first time, revealing that 12.6% of families in Canada are stepfamilies.
With this ever-expanding family category comes expanded estate planning considerations. It’s not surprising that as families become more complex, it becomes more complicated to draft a will that properly and legally takes into account all members of your family. Seeking the advice of a wills and estates lawyer is essential in making sure your estate will be distributed according to your wishes.
Each of “blended family” composition requires its own special attention when it comes to estate planning.
According to the census, 7.4% of the stepfamilies in Canada are “simple stepfamilies”—that is, all children in the family are biological or adopted children of only one of the spouses. The remaining 5.2% are “complex stepfamilies,” which have at least one child of both spouses and at least one child of only one of the spouses.
If you’re a parent who has remarried and are redrafting your will, you’ll want to seek the advice of a wills and estate lawyer to guide the process. You can contact DBM’s experienced Langley, Sechelt, and Coquitlam lawyers here.
To begin the process of estate planning for your blended family, consider the eight essential points below.
Before you and your new spouse draft your wills, you should each sit down and determine your estate planning goals. That could mean making each other sole beneficiary; making all of your children, both shared and stepchildren, equal beneficiaries; or favouring one set of children over the other.
After you set your estate planning goals, it is essential to discuss these with your partner in an open and frank way. Having a wills and estates lawyer come into the process early on to facilitate this conversation can help to reduce emotion and make the process as smooth as possible.
You and your new spouse must not only consider the estate planning wishes of one another, but also those of the children’s other biological parents, who may have yet other estate planning goals. Discussing with your former spouse the provisions you wish to include in your will for your children, especially for any minors, helps to reduce possible conflicts.
Your wills and estates lawyer will ask to review the wills made during your previous marriage and the provisions included therein, both in reference to your children and to your former spouse, when drafting your new will. It is also important to note that under the Wills, Estates and Succession Act in British Columbia, wills are no longer automatically revoked when you remarry (enacted March 14, 2014).
Along with previous wills, you will need to refer to any RRSPs, life insurance, and other policies to update the beneficiary listed. In most cases, your former spouse will be named, and this is also not automatically revoked with divorce or remarriage.
Your lawyer will also ask about any contractual obligations you have to your former spouse, which may include the right to assets shared during your marriage.
When families become blended, that doesn’t necessarily mean that yours and your new spouse’s assets will be. Often assets are kept separate when partners come into a marriage with a great difference in wealth, whereas younger couples who have similar estates are more likely to blend assets.
Whether you and your new spouse choose to blend or keep separate your assets will affect the way your will includes children from your previous marriages.
When estate planning within a stepfamily, you must consider the connecting lines between your primary and secondary beneficiaries. For example, if you leave everything to your new spouse as primary beneficiary, the children from your first marriage may never receive a portion of your estate, as they may not be beneficiaries in the will of your current spouse, who has now inherited your full estate.
When minor children are part of a stepfamily, it is important to realize that the other biological parent has automatic right to custody in the event of your death. However, if your child hasn’t had recent contact with this parent or you do not want your former spouse to be the guardian of your child for another reason, naming another guardian in your will allows that person to start a guardian application in the courts.
If your new spouse adopts your minor children, then they will have the right to custody of your children in the event of your death. If you and your spouse do not adopt each other’s children—which is often the case with adult children—it has a different effect on estate planning. Since non-adopted stepchildren have a different legal status to adopted and biological children, it is very important to include them in your will as beneficiaries if you wish them to share in your estate.
Each stepfamily has its own nuances that require the attention of a legal professional. You can contact DBM’s Langley, Sechelt, or Coquitlam lawyers for advice on your own particular situation.