There is a tendency for spouses to think about their separate estates as a single estate that is ultimately distributed upon the death of the surviving spouse. That’s not accurate. Spouses’ wills are often reciprocal: each designates the other as beneficiary then some common alternatives (e.g., children) when one spouse dies before the other. Yet, a will is an individual document and while spousal wills may be mirror one another, they are not irrevocable and they deal with separate estates.
Accordingly, a spouse may change his or her will after signing and the plan spouses came up with together may not be the plan put into effect when the second spouse dies.
This can be a real concern. Consider blended families where spousal wills may contemplate a specific distribution among children from prior relationships; or a surviving spouse entering into a new relationship; or a surviving spouse inclined to favour one child over another.
If the concern is pressing for spouses, there are some options to consider.
• Contract: spouses agree that their wills or a specific distribution are not to be changed.
• Spousal trust: rather than an absolute gift to the surviving spouse, spousal wills may provide for assets to be held in trust for the use and benefit of the surviving spouse then upon the death of the surviving spouse the assets are transferred to certain beneficiaries.
• Gifts during the lifetime or designating beneficiaries (e.g., life insurance policies) may ensure an asset goes to a desired beneficiary without relying on a surviving spouse’s will.
These are not always easy or practical options. For example, in the case of a spousal trust, if most assets are held jointly, then, on the first to die, those assets will pass outside of the estate to the surviving spouse, unconstrained by the will. There are also costs to maintaining a trust over time.
Plus, Ontario law typically requires a testator adequately provide for dependants, including spouses, upon death. Estate planning where spouses agree to leave less than one might expect or leave it in a way that provides limited control for the surviving spouse should include the opportunity for both spouses to obtain separate legal advice and representation.
Some spouses are concerned about the risk of a subsequent change to a spouse’s wills; others are not. The important thing is that they have thought about it and discussed it with each other and with their professional advisors. It may lead to some awkward car rides home from my office but your own understanding and confidence in your estate plan will be better for it.
Adam Kowalsky is an associate at the law firm of Cobb & Jones LLP. For more articles, visit the library page at www.cobbjones.ca