While proper estate planning can help everyone achieve their objectives, extra planning considerations may be required for those in blended families, cohabitating couples, same-sex couples and polyamorous relationships. This article outlines non-traditional family situations that may lead to estate disputes and how to ensure your assets are distributed in accordance with your wishes.
Long gone are the days when the majority of people lived in nuclear families with one mom, one dad and a few kids, in what was once thought of as the “traditional Western family structure.” Modern families have evolved. Divorces and re-marriages create blended families with stepparents and stepchildren. Cohabitation and the prevalence of alternative family structures are increasing – including LGBTQ+ families with two parents of the same gender. While there are many ways of creating and defining a family, family structures that may be considered non-traditional or alternative require Estate Planning to be carefully considered and specific.
If you are part of a non-traditional family, estate planning is especially important because the law in BC (the Wills, Estates and Succession Act or “WESA”) doesn’t cater specifically for many non-traditional family structures. For example, if you die without a Will (intestate), the “default” estate distribution is that the majority, or all, of your assets go to your spouse. If there is no one who fits in the definition of a spouse, then your estate goes to your children, and so on. “Spouse” is defined as someone that you are married to, or have lived with in a marriage-like relationship for at least two years.
It is common practice for spouses to leave all of their assets to one another under their Wills. This can be adequate estate planning if all children in the family are biological or adopted children of both spouses, but can lead to problems in blended families. For example, consider a couple who remarry, and both have children from previous relationships. The wife may leave all of her assets to her husband in her Will trusting he will ensure her children share in his estate when he dies. On her death, everything passes to her husband, and her children from the previous relationship are not provided for. When the husband later passes away, in the absence of estate planning by his late wife, he has no obligation to provide for her children (his stepchildren) and in fact, there is no moral obligation to provide for stepchildren under WESA. The unintended result in the above example is that the wife’s children from a previous relationship receive no inheritance under either estate, which could have been remedied by hiring an estate planning lawyer to address specific wishes in advance.
Another relationship in blended families is that of a parent to a child they have never formally adopted. If you have cared for a child but have not formally adopted them, be aware that they will not have a right to a share of your estate on intestacy. The overriding message is that if you are in a non-traditional family and want to provide for the care of a non-adopted or biological child when you die, it is imperative to set your wishes out in a Will.
Same-sex Couples: In same-sex marriages
It is not uncommon for extended family members to be unaware of, or in denial about, their child’s relationship status. Unaccepting family members may be kept out of the loop when an individual is in a serious relationship with, or even married to, someone the family might not approve of. This often occurs in same-sex couples, interdenominational couples or interracial couples. If one spouse dies without a Will, the deceased’s parents may label their child’s spouse as only a “friend” or a “roommate.” If the couple was not married, or had not been living together in a marriage-like relationship for at least two years, spousal status will be challenging to prove. Clear instructions will save your spouse from having to deal with the time consuming and expensive litigation from upset family members. If there was already familial conflict, these situations can become quite heated with parents believing that assets should go to them. Again, the message is that if you leave a Will that clearly identifies that you wish for all assets to go to your spouse or partner, this can and will be followed.
Your choice of executor is also an important consideration. If you pass away without a Will, your parents may apply to be the Executor(s) of your estate. Their role is to secure your assets, including your home. If your spouse does not also apply, disputes may arise and your spouse could find themselves having to deal with parents who took on this role and are asking your spouse to leave your home.
In the same vein, you may have more than two spouses in your family. If, for example, two of those people are legally married, and there is no Will identifying the desired division of assets, the unmarried spouse will have an uphill legal battle to prove that they are also entitled to the estate. Estate planning lawyers can draft your Will to offset amounts that one spouse may receive from other sources of income, such as a pension. Financial planning documents may be limited to one beneficiary, or your estate can provide for many people if this is specifically outlined in your Will.
Many young couples in Vancouver move in together early in their relationship to save on the increasing cost of rent. This can be problematic if one person in the relationship does not want their assets to pass to their partner when they die. If you have lived together in a marriage-like relationship for at least two years, your partner is considered your “spouse” and will be entitled to all or the majority of your estate if you die without a Will (depending on whether or not you have children). Your Will can provide that some of your estate go to someone else, as long as it is drafted to consider your partner’s maintenance as your “spouse.”
Conversely, many older couples do not live together. They may choose to keep their condos, or they may live in a care facility. If the couple does not marry, and has not lived together for at least two years, they may need to prove their status as a spouse in court against the deceased’s other family members. This can be avoided by addressing estate planning concerns early.
More than just a Will
Estate planning involves more than just a Will; there are a variety of documents and considerations that should be addressed to personalize your estate planning strategy. One such document is a Power of Attorney (“POA”). A POA is a document that allows someone of your choosing to do anything you can do by way of attorney, such as to manage your assets such as property and bank accounts.
Another document is a Representation Agreement. This document outlines the medical choices you wish for your loved one to make for you if you become too ill to decide for yourself. You may choose to give these powers to your spouse or friend, so that you can rest assured that you and your assets will be taken care of if you become ill. You can think of these documents as a form of “insurance” in that you hope you never need them but they can be so helpful to have if you do. These documents must be executed while you have capacity to understand their effects, and thus it is prudent to consider these estate planning tools before they become necessary.