What is a blended family?
A blended family is one that includes children of a previous marriage of one spouse or both spouses. It may also include children the spouses had together.
What factors complicate succession planning for blended families?
The parents of a blended family can face several issues when thinking through what to put in their Wills. Some of these issues are interpersonal, such as:
- the spouses may have broguht a number of children into the blended family
- the children may range widely in age, from infants to adults, and have very different interests and needs
- the children may have different expecations regarding what they will inherit from their other parent
- the children may not bond as siblings, particularly if they are teenagers or adults when the new family is formed, resulting in indifference or hostility to their step-siblings
- the children of the previous relationship may be hostile to the new step-mom or step-dad, feeling that the new relationship dishonours their other parent
- the spouses may have had very different experiences regarding the termination of their prior relationships (e.g., one spouse had a bitter divorce, while the other is a widow(er))
- the spouses may be in a same-sex relationship
Other issues may be financial:
- the spouses have usually contributed different amounts to the family assets
- the assets the spouses brought into the relationship may have different tax implications
- the spouses may have pooled some assets (e.g., by both selling their houses and buying a new home in joint names) and kept other assets separate
- a spouse may have financial obligations to a former spouse
Although these complexities and tensions may be challenging, the parents of blended families need to discuss their situation so they can proactively to find solutions because the human and financial cost of neglecting this important responsibility can be huge. It is naïve to think that your children will know what you want and work cooperatively to carry out your wishes if you have not crystallized your intentions in your succession documents.
Turning Point Law can help you work through this discussion and will produce custom documents to meet your unique needs.
Don't spouses share everything 50-50 when one of them dies?
Not necessarily. The law on the division of matrimonial property is complicated. However, clear, thoughtful succession documents can mitigate the complexity.
There is no excuse for spouses of a blended family to leave each other and their families without clear documentation of their wishes regarding how their property is to be divided when they die. The cost of succession documents pales in comparison with the cost of sorting out a division of property in the courts.
Turning Point Law has deep experience leading our clients through a detailed conversation about their unique circumstances and guiding them to custom tailored solutions for.
What do blended families want?
There is no "one-size-fits-all" answer to this question.
- Sometimes both spouses have enough separate assets to support themselves after the other dies, so they agree that they will split the pooled assets, but their separate assets will go to their own children when they die.
Sometimes, one spouse has enough separate assets to support themselves after the other dies, but the other will need support, so they have to decide how much to set aside for the surviving spouse, whether it is to be given as a gift or held in a trust, and how much will go directly to the children of the first to die.
Sometimes both spouses will need support after the first dies, which again will require an analysis of how much will be needed, whether it is to be given as a gift or held in a trust, and how much will go directly to the children of the first to die.
Sometimes, both spouses are willing to let pooled assets go to the surviving spouse, knowing that the assets may then pass to the children of the surviving spouse, but they want their separate assets to go directly to their own children. Other times, they want their share of the pooled and separate assets to flow back to their own children when the surviving spouse dies.
Sometimes, they want to treat all their children equally; other times, they want the children of each spouse to be treated equally, but the children of one spouse, as a group, to receive a different amount than the children of the other spouse.
There are numerous other options, depending on the circumstances of the family.
Turning Point Law can help you clarify your choices and help you find the best solution for your family.
Our matrimonial home is registered "as joint tenants". Is this a good idea?
If your matrimonial home is registered "as joint tenants", it will pass absolutely to the surviving spouse unless (which is very unlikely) there is a written declaration that establishes a different intention. This is called the right of survivorship. The surviving spouse then has the right to do as they please with the home, including selling it, leaving it to their own children, or, upon establishing a new relationship, leaving it to a new spouse.
Sometimes spouses of blended families make a verbal agreement that on the death of the first to die, the home will pass to the survivor, who will then ensure that its value is split between the children of both spouses according to the spouses' contributions to the purchase price, but fulfilment of that agreement requires the surviving spouse to have a will that implements the agreement, which doesn't always happen.
Turning Point Law can help you understand the consequences of registering your matrimonial home in joint names and guide you through an exploration of some alternative structures.
What is the RRSP tax trap?
We have seen situations where clients have designated their own children as beneficiaries of their RRSPs or RRIFs. Such a designation takes the plans out to the Will because they pass directly to the children.
Under the Income Tax Act, when an RRSP or RRIF is left to someone other than a spouse, the plan is collapsed and the full amount is taxable in the deceased's final tax return. In other words, the deceased's estate is responsible for the tax, not the recipient(s).
Consequently, a surviving spouse who is the beneficiary of the residue of the estate may in effect end up paying the tax (through a reduction in the residue of the estate) on the gift to his/her step-children.
If it is the parties' intention that the children receive the plans tax-free, no problem. However, if it is their intention that the tax on the RRSP or RRIF fall on the recipients of the plans, other arrangements need to be made.
Can a trust help?
A trust is a legal arrangement under which any kind of property (including money and investments as well as real estate) is held by one person (the trustee) for the benefit of another person (the beneficiary).
In a blended family situation, a trust is often used to make funds available to support a surviving spouse during the surviving spouse's lifetime, with the remainder of the trust passing to the children of the person who set up the trust when the surviving spouse dies.
For example, Chris and Drew marry late in life. Chris has 3 children and Drew has one. Chris brings a large investment portfolio into the marriage. They agree that if Chris dies first, Drew will get the income (not including capital gains) from the investments for life, but on death, the portfolio will pass to Chris's children. The way to accomplish this goal is to set up a spousal trust in Chris's Will, with Drew as the "beneficiary for life", with a "gift over" to Chris's children when Drew dies.
A spousal trust is a trust where the primary beneficiary is a spouse (includes married and common law spouses), that provides that all the income of the trust goes to the spouse for life and none of the capital goes to anyone but the spouse before the spouse dies. A spousal trust gets special tax treatment.
Turning Point Law has the expertise and experience to set up a spousal trust to take advantage of the special tax treatment of spousal trusts.