What If Your Spouse Remarries After Your Death?

Typically, when a couple is preparing wills, they leave everything to each other, and if the other spouse does not survive them, to their children. The idea is that your spouse should benefit from all of your hard work, and whatever is left over goes to benefit your children.

However, what if your spouse remarries after your death? Then, they may choose to give some of their estate to their new spouse, or their new spouse’s children. You won’t even know that these people exist – much less want the fruits of your hard labour going to them rather than your children. What can you do to protect your assets from this sort of situation? There are a number of options – each has its advantages and drawbacks.

Option #1 – Mutual Wills
Under this option, you and your partner enter into wills as normal. However, in addition to entering into wills, you also enter into an agreement between the two of you not to change your will without the other’s permission. Once one of you passes away, obviously that permission can no longer be obtained, so the surviving partner can never change their will.

ADVANTAGES – These sorts of agreements are legally binding, and if one spouse decides to change their mind, the court will enforce the agreement and the estate plan you and your spouse agreed to will be carried out.

DISADVANTAGES – There is a lack of flexibility involved – there can be reasonable circumstances where it may make sense for one spouse to change their will after the other has passed away. As well, you will need to have an additional agreement prepared in addition to your wills, and one party will need to attend at another lawyer’s for independent legal advice. If your spouse is determined to get around this, they can do so my giving gifts of assets while they are alive.

Option #2 – To Your Children In Trust
Under this option, your funds go to your children’s benefit according to the terms of your will. Your spouse would receive the money, but on the requirement that they use the money to look after the children.

ADVANTAGES – This is simple and easy to do in a will. There are no extra costs or steps to take.

DISADVANTAGES – Your spouse may need some of the funds that you leave behind, but will not have access to them because they are for your children’s benefit. There is additional work and costs involved in running a trust for your children.

Option #3 – To Your Spouse In Trust for Their Life, Then To Your Children
Under this option, the funds from your estate are available immediately for the benefit of your spouse. However, the funds do not belong to your spouse, but rather to the trust. So, any funds left over at the end of your spouse’s life are not disposed of by your spouse’s will, and are therefore guaranteed to go to your children.

ADVANTAGES – This is simple and easy to do in a will. There are no extra costs or steps to take. It ensures that your spouse has access to some of your assets when you pass away.

DISADVANTGES – There is additional work and costs involved in running the trust.

What’s The Best Option?
What is best for you is going to depend on your specific circumstances, and this is normally something that it is worth consulting a lawyer about.

You’re Invited to Call or E-Mail!

If you are considering a will, power of attorney, or trust — or have already made your decision — you’re invited to call or email us. We’ll explain how you can protect your loved ones and your assets. You can call us at (613) 519-0320 or email us using our contact form here.

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