Blended Family Intestate: Who Gets What?
Protecting Your Children With Wills
Many people in Canada do not have a will. They do not have them for a variety of reasons. These reasons include not wanting to think about death, not wanting to spend money on a will, having “more important things” to deal with in life, being busy and, the most problematic, not understanding the law. The blended family intestate lawyers at Kahane Law Office’s Calgary and Edmonton, Alberta offices look forward to helping. If in Calgary and surrounding area call 403-225-8810 or for the Edmonton and surrounding area call 780-571-8463. Of course you can keep reading to learn more.
General Intentions With Blended Families
Most often, people who remarry and have a blended family want the following to happen if they pass away. First, all their assets go to their new spouse. When that spouse passes away, the estate is then distributed to all the children and step children. (i.e. The children of each individual spouse and the children they have together.) With a blended family intestate, this may not happen
Where Intestate Problems Come Up
There are two situations where problems come up with a blended family intestate situation. Both situations create a problem with the intentions described above
Blended Family Intestate When First Spouse Dies
With a blended family intestate situation, the law, Wills & Successions Act and Regulations, state that the surviving spouse gets the higher of the prescribed amount ($150,000 as of 2015) or 50% of the estate. This can cause a variety of issues. These blended family intestate issues include:
- If only the deceased was on title to the family home, the surviving spouse has 90 days to move out or buy out the children of the deceased.
- If both spouses were on title, then the children of the deceased to not get any benefit of the home as an asset. It does not enter the estate at all.
- The 50% interest that goes to the surviving spouse (that person now has 75% of the total joint assets as of the time of death) then gets distributed only to that person’s own children when they pass if intestate.
Blended Family With Will When First Spouse Dies
The other situation that can occur is if the blended family spouses have wills at the time of death of the first spouse. In this case the will is followed unless there are disputes to the will as to the distribution. An estate dispute is another matter altogether. In this case, the will may make the spouse the beneficiary. At the time the wills were drafted the intention may have been for both parties to then distribute their joint estate on the passing of the second spouse. The problem is that the second spouses will may be changed as to exclude the children of the deceased spouse. If the will is lost or destroyed, then there is a blended family intestate issue. The law states that all the estate will go to the children of the second spouse to pass away.
How to Avoid Blended Family Intestate Issues
The easiest way to avoid blended family intestate issues is to properly draft a will. There are many options for people to protect both their spouse and their children. Standard “will kits” are usually not an effective way of avoiding blended family intestate issues. The interplay, inadvertent consequences and law are usually too complicated. An experienced wills and estates lawyer will be able to help. Another common problem to avoid is putting a home or bank accounts in both spouses names as joint tenants. If the intention is for both sets of children to get the benefit of the family home (or bank account), then this is problematic. With joint tenants, the entire home goes to the surviving joint tenants. None of that assets goes into an estate for distribution.
The Law Is Clear In Intestate Situations
Alberta wills and estates legislation spells out who gets what when someone dies without a will. Case law has held up the law that a step child is not entitled to any of an estate in a blended family intestate situation. The Peters v Peters case is an example where the step children of the second spouse to pass away (the beneficiaries of the estate of the first spouse to pass away) got nothing. This will even include family heirlooms of the step children.
Finding Blended Family Intestate Lawyers In Calgary & Edmonton
Avoiding the challenges of a blended family intestate situation can be difficult. There is a lot of balancing in order to protect the people you love. The blended family intestate lawyers at Kahane Law Office are here to help. Call today. 403-225-8810 in Calgary and (780-571-8463 in Edmonton or email us directly here today.