Blended Families: Protecting Your Spouse Without Leaving Your Children Out

You want your spouse to be comfortable if you die first. You also want your children from an earlier relationship to receive something from you. Both wishes can matter deeply, and neither needs to be an afterthought.

How can a blended family plan for a spouse and children?

Start by looking at the whole picture: your will, home ownership, beneficiary designations, support obligations and your spouse’s potential legal rights. Depending on your circumstances, a plan might provide for your spouse’s immediate needs while also setting aside a gift for your children. The right combination depends on what you own and what each person may need.

What happens if everything goes to your spouse?

Leaving everything to your spouse may feel like the simplest way to make sure they are looked after. But once an asset belongs to your spouse outright, it generally becomes theirs to use, give away or address in their own estate plan. Your children may not receive that asset later, even if that was what both of you expected.

That doesn’t mean leaving property to your spouse is wrong. It means you should understand the outcome and discuss what you want to happen if your spouse remarries, needs care or changes their own will.

Should blended families have a cohabitation agreement?

Yes. If you’re in a blended family, we recommend having a cohabitation agreement. These agreements are also popularly known as prenuptial agreements or prenups.

A cohabitation agreement can help you and your partner clarify your intentions around property and financial matters. For example, you may want to discuss the home you brought into the relationship, assets you’re building together and how your plans fit with your wish to leave something to children from a previous relationship.

The agreement should be prepared with your circumstances in mind and reviewed alongside your wills and the rest of your estate plan. Each partner should have independent legal advice and provide a clear picture of their finances. Your lawyer can explain what the agreement can address and what rights or legal requirements may still apply.

Already living together or married? You can still speak with a lawyer about a cohabitation agreement and the options available to you.

What options can balance both needs?

There is no one-size-fits-all arrangement, but these are useful starting points for a conversation with your lawyer:

• Leave a specific gift to your children and the remainder, or another portion, to your spouse.
• Review whether a beneficiary designation on an insurance policy or eligible account fits the plan and your obligations.
• Discuss whether a trust or an arrangement involving the family home is appropriate. These arrangements have costs, tax implications and rules about management, so they need careful advice.
• Consider the timing and practical needs of each person, including whether there will be enough accessible money for your spouse’s living expenses.

For example, a parent might want their spouse to have resources to remain in the home while also leaving a separate gift to children. The plan needs to address the actual property, available funds and applicable rights. Simply writing a wish in a letter is not a substitute for legal documents.

Who has rights in the family home?

In Manitoba, a surviving spouse or qualifying common-law partner may have homestead rights, including a right to live in the family home for life, even where the deceased owned it alone. The rules for qualifying and the property affected are specific. Other family property or dependant support rights may also apply. Discuss these rights and any proposed agreement with your lawyer before assuming a will can direct every aspect of the home’s future.

Ownership matters too. A home held in joint tenancy may pass to the surviving joint owner outside the will, depending on the circumstances. Read more about joint ownership and your estate.

Does a new marriage affect an existing will?

In Manitoba, marriage generally revokes an existing will, unless an exception applies. For example, a will may contain a declaration that it was made in contemplation of the marriage. Entering a common-law relationship does not automatically revoke a will, but that does not mean an older plan still fits your family. Review it when your relationship changes.

Also bring any separation agreement or court order to your appointment. Support, insurance or other obligations from a previous relationship may affect what you can do.

Review the details people often overlook

Your will is only one part of the picture. Check who is named on insurance and registered accounts, how property is owned, who can act under your power of attorney and who is named as executor. Consider whether your chosen executor can manage the relationships and responsibilities involved. Our earlier article on wills and estates in blended families is another useful starting point.

You don’t have to solve every question before asking for help. Bring a list of your assets, existing documents and the people you want to provide for. Contact TLR Law to review your will and power of attorney and build a plan for your family.