Estate Planning for Blended Families in BC

When you remarry or move in with a new partner, your estate plan has more than one family to account for. A will written for your first family, or no will at all, can leave your new spouse or your children with far less, or far more, than you meant them to have.

BC's Wills, Estates and Succession Act decides who counts as your spouse, who can challenge your will and who inherits if there is no will. This guide explains how those rules apply to blended families and the planning tools that work alongside your will.

Who counts as your spouse

Under the Wills, Estates and Succession Act (WESA), two people are spouses if they were married to each other, or had lived together in a marriage-like relationship for at least two years. A new partner you have lived with for two years can therefore have the same rights as a married spouse if you die, whether or not you ever intended that.

Spousal status can also end before a divorce. For a married couple, it ends when an event under Part 5 of the Family Law Act gives each spouse an interest in family property, which generally means separation. For an unmarried couple, it ends when one or both of you end the relationship.

When you stop being spouses, any gift to your former spouse in your will, and their appointment as executor, is treated as revoked unless your will shows a different intention. That rule is about your will. It does not tell you whether a former spouse is still named on an insurance policy or a registered plan, so check each one separately.

An old will, or no will at all

Since WESA took effect on March 31, 2014, marriage no longer revokes a will in BC. Under the previous law it did, and the Province has confirmed that a will revoked by marriage under the old law is not brought back by WESA. If you married before that date and are relying on a will signed earlier, ask a lawyer whether it is still valid.

If you die without a will, WESA decides who inherits. Your spouse receives the household furnishings and a first share of the estate, called the preferential share:

• $300,000 if all of your descendants are also descendants of your spouse;
• $150,000 if they are not, which is the position if you have a child from an earlier relationship.

The rest of the estate is then distributed under the Act's formula, explained in our guide to who inherits when there is no will.

Stepchildren are where many blended families are caught out. WESA defines your descendants as your lineal descendants, so a stepchild you have not adopted is not one and receives nothing on an intestacy, however close your relationship. If you adopt your partner's child, the child becomes your child for inheritance purposes and keeps their relationship with your partner.

Wills variation: why you cannot simply choose one family

Even with a will, BC law limits how far you can favour one family over the other. Your spouse or your children can apply to court if your will does not make adequate provision for their proper maintenance and support, and the court can order what it considers adequate, just and equitable in the circumstances.

Two points matter most in a blended family:

• Adult children can apply. The right is not limited to young or dependent children, so independent adult children from an earlier relationship can bring a claim.
• Stepchildren generally cannot. A stepchild you have not adopted is generally not treated as your child for this purpose. If you want to provide for a stepchild, name them in your will.

Leaving everything to your new spouse can invite a claim by your children, and leaving everything to your children can invite a claim by your spouse. A claim must be started within 180 days after the grant of probate or administration is issued, as our article on contesting a will in BC explains. Planning for that possibility now is easier on everyone than a dispute after your death.

Assets that pass outside your will

In a blended family, the way assets are held can matter as much as the will itself.

• Joint tenancy. When a joint tenant dies, their interest passes to the surviving joint tenant. A home you own jointly with your new spouse goes to them regardless of what your will says about your children. Holding as tenants in common lets your share pass under your will instead.
• Registered plans. WESA allows you to name a beneficiary for plans such as RRSPs and RRIFs in a signed written designation, or in your will if the will refers expressly to the plan. A benefit paid to a named beneficiary does not form part of your estate.
• Life insurance. Insurance designations are governed by the Insurance Act. A policy naming your spouse, your children, or a trust for them can balance what each family receives.

Review every designation after a separation, a new relationship or a marriage. An old form naming a former spouse, or a single child, can undo a careful will. Moving assets outside your will also has trade-offs of its own, which our article on reducing probate fees covers.

Trusts, life interests and marriage agreements

A trust in your will is a common way to provide for a spouse without cutting out your children. For example, your spouse might be allowed to live in the home, or receive income from part of the estate, for their lifetime, with the capital passing to your children afterward. Choosing the trustee matters: asking a step-parent and stepchildren to manage a trust together can strain relationships, and an independent trustee is sometimes a better fit.

A marriage or cohabitation agreement under the Family Law Act can set out how property and debt will be divided if you separate, including keeping property you bring into the relationship separate. A court can set aside or replace an agreement if a spouse failed to disclose significant property or debts, took improper advantage of the other, or did not understand the agreement, or if the agreement is significantly unfair. These agreements are mainly about separation, so your will should be drafted to fit with the agreement, and each of you should have independent advice.

When to review your plan

Revisit your will and designations when you:

• move in with a new partner, and again as you approach two years together;
• marry or separate;
• buy a home with a new spouse;
• have or adopt a child, or a stepchild joins your household.

Planning for a blended family? Start with your will and designations

Our wills and estate planning lawyers can review your current will, beneficiary designations and how your property is held, and prepare a will and trust arrangements that take account of your spouse and each of your children.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.