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Sunday, December 20, 2015

In a second marriage, make any gift to your kids crystal clear

I'm pretty sure that when I urge people in second marriages to make strong wills that leave nothing to chance, I'm viewed as being terrifyingly cynical. I'm not though. I just know that making a will that says one thing when you're telling your kids you actually want a different thing to happen, and hoping that your new husband or wife will carry out your "real" wishes, is simply foolish.

If you are in a second marriage and you want assets of your first marriage, such as the family home and contents, to go to the children of the first marriage, then make a will that says so. Why make a will leaving everything to your new spouse when that's not really the way you want it? This is very common, unfortunately, and the letter below is one that I received from one of the adult children of a first marriage who wonders about her mother's wishes:

"I'm so hurt.  I recently learned that my stepdad took all of my family members out of his will and has been giving my mother's possessions away and throwing out our family pictures.  My mom died a few years ago with confidence that he would live in the house (that she purchased) as long as he lived or remarried, and then the house and it's contents were to be split among us five children.   Recently he told a family member that his will only contains only his sons and not us.  My mom is gone but isn't there any way her wishes can be honored?  This doesn't seem morally right.  I have never seen my mom's will.  Ever since she has been gone,  my stepfather has only ever said that its not legal anymore.  Also is it possible to view mom's will?  How does one go about that?"

It's interesting that you said your mother had "confidence" that he would live in the house and later pass it on to her children. How do you know this is what she wanted, since you haven't seen the will? This is the very crux of my answer. There are two possibilities here.

One is that your mother made a will in which she placed her home in a trust for her husband's lifetime. Putting the house (and perhaps its contents) in trust would mean that your stepfather would be able to live in the home as long as he liked, but he could never sell it or leave it to anyone in  his will. This trust would have been set up in your mother's will.

The other possibility, and this is by far the most common scenario, is that your mother's will left everything to her husband, and she simply hoped that he would do what she considered the right thing when he passed away. As I said, this is commonly the way things are done in second marriages, and it pretty much always ends up with people being as hurt and upset as you are right now. It's a terrible idea.

I am often consulted by the children of a deceased, remarried parent who say that they want their parent's will carried out when the step-parent dies. What they don't understand and really don't wish to accept, is that if their parent left everything to the new spouse, the wishes WERE carried out. The law says the wishes are defined by what is said in the will. If the parent had some other agenda, it was a huge mistake not to put the "real" wishes in the will where they could be defended and upheld by the courts. This is the parent's fault, not the step-parent's fault, hard as that may be to accept.

A confusing aspect of all of this is the way people read wills. Usually, a married person's will says that everything goes to his or her spouse. The will then goes on to say that if their spouse has already died before them, the estate is to go to the children. Unfortunately, the children tend to read this as meaning when the spouse dies, it's all going to them. However, it doesn't mean that at all. If the parent dies and the estate passes to his or her spouse, that spouse now owns it. He or she can make a new will that is completely different than what the first parent had wanted (as it seems your stepfather did). This is perfectly legal. The property is his. He can leave it to whoever he wants, and he is not legally bound by any moral obligation that other people feel he should have.

Keep in mind, too, that your mother might have put your stepfather's name on the property as a joint owner, even though she paid for it. If she did, he inherits the house by right of survivorship and her will has nothing to do with it.

The final factor that comes into play is the matrimonial property legislation in the province in which your mother and stepfather lived. This varies from place to place, but if they were legally married, you can be sure that even though your mother paid for the house, there will be some sort of legal right to possession or possibly ownership of the home.

To summarize, if your mother left him the house in trust, he cannot dispose of it (depending on the terms of the trust). Otherwise, he is completely within his rights to do whatever he wants with it. You would have to see your mother's will, or, realistically, to have a lawyer look at it for you to know for sure.

Normally I would suggest to someone who wants to see a will that they ask the executor of the estate. I suspect that in this case, the executor is your stepfather, in which case you've already had that discussion. If the executor is someone else, ask that person if you can see it. If they say no, you may end up going to court and explaining to the judge that you think there might have been a trust that is not being followed. Now please don't run off to court based on this blog post alone. There are probably a million facts of your case of which I'm not aware, and I am simply stating the general rules that apply in situations like this.

Start with getting more information, If your mother's will was probated, you can get a copy of it by asking the Clerk of the Court at the courthouse nearest where she lived. If the house was only in her name, the executor would have had to go through probate to transfer the title. Or perhaps ask your relatives if anyone has a copy of the will. You  might also check the local land titles registry to see how and when his name was put on the house. This will answer the question about whether he had been added as a joint owner while your mother was alive.

You might also mention to your stepfather that you'd be happy to take the pictures and small household items that he no longer wants. He might be throwing them away because he thinks nobody wants them.


  1. Linda, thanks for the great blog. The question I have relates to the conflict between matrimonial legislation and a testator's desires. For example, I understand that a testator can't leave a life estate in the matrimonial home to his second spouse, with the children of his first marriage receiving the house on her death, as she has a right to the home under the legislation (in this case, Alberta). How can you draft a will that doesn't leave everything to your current spouse and still remain onside the legislation? Thanks.

  2. Hi, I don't understand how you can say that she should have simply gave the house to the children of the first marriage, but then also say that: "e final factor that comes into play is the matrimonial property legislation in the province in which your mother and stepfather lived. This varies from place to place, but if they were legally married, you can be sure that even though your mother paid for the house, there will be some sort of legal right to possession or possibly ownership of the home." How can you leave it to the children of your first marriage when the legislation says it goes to your current spouse?

    1. I didn't say "she should have simply gave the house to the children of the first marriage".

      Giving it to the children of the first marriage may well be possible. The legislation does NOT say in every province that the house goes to the current spouse, and even in places where it does, the spouse can opt out of that in writing.

      If there is any lesson to be learned, it's to see a lawyer to find out how the law works where you live, and to make the plans you need to make in the context of those laws, including making a will.


  3. Dear Lynn,

    My father married his second wife four years ago, for two of the four years she hasn't been here. He met her on the net (as humiliated as I am to say that) and now she's here, and has got her one daughter here, and trying to get the second one here as well. I do not trust her at all. Apparently she was a doctor but is now "retired", so my father pays for everything. They sleep in separate bedrooms and now my father is putting his house up for sale, one he bought prior to getting married to her. He doesn't want to sell his home but she does. Could this be a ploy? If he buys a new place now that they are married is she entitled to the new place more so than the one he bought prior to their marriage? Also, I was told that if she does not bring her assets into the marriage, my father is not entitled to them? I'm very concerned, despite my father saying he's left everything to my siblings and I, naming me as executor, I'm worried she will take everything for herself and her kids. This sounds awful but her kids have two parents that are doctors, unfortunately my two parents never planned for the long term. It scares me that she would get 40k automatically and that would be all that's there leaving my siblings and I with nothing. Does this make sense? She doesn't contribute any of her wealth to the marriage at all. Her mother passed away and she did not share any of the inheritance with my dad as well. Any advice you could give would be greatly appreciated. This whole situation has me in a panic! Thank you!


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