Blended Family: Will + Estate Planning
Will - Updating Will - Invalid or No Will - Power of Attorney - Personal Directive
To schedule an appointment, contact our law firm at 403-400-4092 or Chris@NeufeldLegal.com
Estate planning for blended families requires a precise strategy to navigate the Wills and Succession Act (Alberta), which balances testamentary freedom with the legal obligations owed to spouses, adult interdependent partners, and dependents. Alberta law imposes a moral and legal duty on a person to provide adequate maintenance and support for their surviving family members. If a will prioritizes children from a previous relationship to the exclusion of a current partner, the survivor may apply to the court for a maintenance and support order. Under the Wills and Succession Act, marriage no longer automatically revokes an existing will, meaning a person might inadvertently leave their entire estate to a former partner if their documents are not updated. As such it imperative that your will and other estate planning documents attends to your new family dynamic, while being in conformity with the law [more on protecting all your biological children].
A primary method for managing these competing interests is the creation of a testamentary spousal trust, which is structured to comply with federal tax regulations while meeting provincial support obligations. This arrangement ensures that the surviving spouse or adult interdependent partner receives all income generated by the trust assets during their lifetime, which helps satisfy the legal requirement for their maintenance. Upon the death of the survivor, the remaining principal is directed to the children of the first spouse as specified in the original document. This legal structure protects the capital for the biological heirs while providing the partner with a stable financial stream. Without such a trust, a direct inheritance to a spouse could result in those assets being eventually passed to that spouse’s own heirs, bypassing the children of the first-to-die.
The handling of assets that pass outside of the estate, such as life insurance and registered accounts, is a significant legal consideration under the Estate Administration Act (Alberta). These assets are governed by beneficiary designations that operate independently of the instructions contained within a will. However, these designations may still be subject to claims for maintenance and support if the remaining estate is insufficient to provide for the surviving partner or dependent children. The particularity of these designations must be meticilously undertaken, especially when one considers that the misalignment between these external designations and the primary will is a frequent cause of litigation between step-parents and stepchildren.
Consideration must also be given to the Family Property Act (Alberta) and the Dower Act (Alberta), and how this legislation interacts with estate distribution, particularly concerning the matrimonial home and the division of property. The Dower Act grants a non-titled spouse a life estate in the homestead, ensuring they have a place to live for the rest of their life regardless of who is named in the will. Furthermore, a surviving spouse or adult interdependent partner may have a statutory right to claim a share of the family property through an equalization process under the Family Property Act, instead of accepting the prescribed inheritance. To prevent an unintended shift in asset distribution, couples often sign a formal domestic agreement that waives these specific statutory rights. These agreements must be carefully crafted to withstand legal scrutiny, including being executed with independent legal advice for each party, such that they remain legally enforceable in an Alberta court.
Meanwhile, the selection of a personal representative is a sensitive decision that can lead to significant conflict if not handled with objectivity. The Estate Administration Act outlines a specific list of duties that a personal representative must fulfill, and failure to do so can result in personal liability. Appointing a surviving spouse to manage the inheritance of their stepchildren often leads to disputes over the valuation of assets or the timing of payments. Similarly, appointing a child from a previous marriage to oversee a step-parent’s financial support can create an adversarial relationship. Using a neutral third party (i.e., a professional trust company) can alleviate this burden and better ensure that the estate is administered according to the Surrogate Rules without personal bias or emotional influence.
Given the potential volatility of these situations, it is imperative that the will be undertaken to withstand allegations of undue influence or a lack of mental capacity, such that nothing should be left to chance with respect to the professional quality of one's will and related estate planning documents. When a distribution appears to favor one branch of a blended family over another, dissatisfied heirs may seek to have those document declared invalid under the Wills and Succession Act. And given the high costs associated with protecting the estate from such legal challenges, having undertaken appropriate legal steps, with knowledgeable professionals, is critical to safeguarding your decisions against those who might seek to up-end the specific estate plan that you had created from your blended family upon your death.
Our law firm can help you plan for the future of your blended family, including the preparation of a well-drafted will and other estate planning documents, as well as dealing with the legal demands associated with the passing of a loved one. We welcome you to contact our law firm today at 403-400-4092 or via email at Chris@NeufeldLegal.com to schedule a confidential initial consultation.
IMPORTANT NOTE: This website is designed for general informational purposes. The site is not designed to answer specific questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice in respect of your individual situation nor use it as substitute for individual legal advice. If you want specific legal advice, you need to engage a lawyer under established legal engagement procedures that have been specifically agreed to by that lawyer.
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