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Alona Mercado     Second marriages and your estate

 

 
   

All your life you grew up calling your Lola’s husband Lolo. You didn’t care that he really wasn’t your biological grandfather but was only your grandmother’s second husband. To you he was the only grandfather you’d ever known and your entire family loved him and treated him as if he was “Lolo.” In fact, your mother and her siblings refer to him as their father as well, even though in law, he was only their stepfather.

Second marriages and blended families are quite common in today’s society. It’s a fact of life for many people and most don’t even think about the legal consequences of this relationship until it’s too late. Imagine for a moment that the family I just described loses their Lola to an illness. Lolo passes away one year later without leaving a will. What happens to his estate?

Lolonever had any biological children of his own and was content to raise his wife’s children as his own. However, he never legally adopted them. He also had a falling out with his only sibling over 50 years ago and has not spoken to her or her family since. His wife’s family is all he has.

Because Lolo died without a will, his assets would be distributed according to the Intestate Succession Act of Manitoba. This act sets out who would inherit from the estate based on degree of kinship to the deceased.

In our situation Lolo’s stepchildren and step-grandchildren would receive nothing from the estate because there is no legal relationship that is recognized by the act. Consequently, although Lolo hasn’t spoken to his sister for most of his lifetime, she would be the legal heir to his estate because he died without a will. Is this fair?

Let us consider another situation that is also quite common. A husband and wife both have wills leaving their estates to each other and then to their children after the remaining parent passes away. The husband dies after thirty years of marriage and the wife decides to remarry against her children’s wishes. The wife inherited the husband’s entire estate. She later dies without making a new will thinking that her old will was still valid but she would be wrong. A will continues to be valid unless it is revoked by the person who made it (called the testator/testatrix) or by law. In this situation, the law automatically revoked the will upon the wife’s marriage to her second husband. Thus her children would not receive what either their father or their mother had intended for them to inherit.

In this situation, the law states that the new husband would be entitled to $50,000 or one half of the estate, whichever is greater, plus one half of the remainder of the estate. So, in essence, the new husband could be entitled up to 75% of the estate while the children of the first spouse could only be entitled up to 25%.

The following three examples will help illustrate this formula more clearly.

  1. If the estate was only worth $40,000, the new husband would inherit the entire amount and the children would receive nothing.
  2. If the estate was worth $70,000, the new husband would receive $60,000 and the children would be entitled to the remaining $10,000.
  3. If the estate was worth $200,000, the new husband would inherit $150,000 and the children would evenly split amongst themselves the remaining $50,000.

It would seem cruel and extremely unfair to treat families this way, especially after the loss of a loved one. However, the law is clear. The onus and responsibility of drafting a will and keeping it valid rests with each and every individual. If you fail to draft a will during your lifetime or you fail to ensure that it stays valid, you lose the right to determine who your beneficiaries will be. Instead, the Intestate Succession Act of Manitoba will dictate who benefits from your estate. In order to ensure that your assets go to your true beneficiaries, the people who you truly want to benefit from your death, you need to ensure that you have a valid will. If you don’t, the government will decide for you.

Will Week 2011

The Winnipeg Foundation, in partnership with the Manitoba Bar Association and Office of the Public Trustee will hold Will  Week 2011 from April 25th to April 29th. Manitoba lawyers will present free information seminars as a public service throughout the province. For further information or to register, please call 948-3394. I will be the presenter at the Seven Oaks General Hospital, Wellness Institute on Monday, April 25th, 2011.

The content of this article is not intended as legal advice and is for information purposes only. Should you require legal advice on a specific issue relating to the contents of this article, please seek the services of a legal professional.

Alona C. Mercado is a lawyer practising in Winnipeg with the law firm of MONK GOODWIN LLP. She was called to the Manitoba Bar in 1999 and the Ontario Bar in 2003. Her preferred areas of practice include wills and estates, committees, real estate, and immigration law. Alona can be reached at (204) 956-1060 ext. 233 or This email address is being protected from spambots. You need JavaScript enabled to view it. .

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