Remarry + Protect prior Children: Will + Estate Planning
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To schedule an appointment, contact our law firm at 403-400-4092 or Chris@NeufeldLegal.com
Managing your inheritance and its distribution to your loved ones when you remarry requires a delicate balance between providing for a new spouse and safeguarding the legacy of biological children within your will and estate plan. Under the Wills and Succession Act (Alberta), a new marriage no longer automatically revokes an existing will, but it does create significant legal obligations that can override your original intentions if not properly managed. Without a proactive strategy, your assets could inadvertently pass entirely to your new spouse, who may then distribute them to their own heirs, effectively disinheriting your biological children. Protecting your biological children's interests involves a combination of specific legal structures, clear documentation, and an understanding of Alberta’s unique provincial regulations regarding family maintenance and support.
One of the most effective tools for protecting biological children is the use of a Spousal Trust within your will. Instead of leaving assets to your new spouse outright, you can place them in a trust that allows the spouse to use the income or live in the family home for the remainder of their lifetime. Upon the spouse’s death, the remaining capital is then legally directed to your biological children rather than the spouse’s estate. This ensures your spouse is cared for during their lifetime while guaranteeing that the underlying wealth eventually reaches your intended heirs.
Another critical consideration is the management of non-estate assets, such as life insurance policies, RSPs, and TFSAs, which pass outside of a will via beneficiary designations. In many cases, people forget to update these designations after a remarriage, or they name a new spouse without realizing they have exhausted the funds intended for their children. To protect your biological children, you might consider naming them as direct beneficiaries of a specific life insurance policy or a portion of your registered accounts. This provides them with immediate, tax-efficient liquidity that cannot be challenged through a claim against the estate, creating a carve-out of wealth specifically for their future.
The way you hold title to real estate, particularly the matrimonial home, also plays a pivotal role in how your inheritance is dispensed and how you need to undertake estate planning. If you own a home as Joint Tenants with your new spouse, the property automatically passes to them upon your death through the right of survivorship, bypasses your will entirely, and leaves your children with no claim to the home. To prevent this, you can sever the joint tenancy and hold the property as Tenants in Common, which allows you to gift your 50% interest to your children in your will. However, you must be mindful of the Dower Act (Alberta), which grants a surviving spouse a life estate in the homestead regardless of what the will says, meaning your children may own the interest but cannot occupy or sell the home until the spouse passes away.
Finally, it is highly recommended to enter into a formal Prenuptial or Postnuptial Agreement that includes a clear waiver of estate claims. While you can express your wishes in a will, the Wills and Succession Act (Alberta) allows a surviving spouse to apply to the court for a larger share of the estate if they feel they haven't been adequately provided for. A valid, legally binding prenuptial or postnuptial agreement (where both parties receive independent legal advice), when combined with a precisely drafted will, enables you to provide for your new spouse while ensuring your biological children remain the ultimate beneficiaries of your inheritance.
Our law firm can help you plan for the future of your blended family, so as to appropriately protect both the spouse of a subsequent marriage and your biological children, including the preparation of a well-drafted will and other estate planning documents. 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.
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