My dad may re-marry. What are his new wife's rights to his home?

When an older parent remarries, it tends to cause a lot of anxiety in his or her children. Sometimes the anxiety is warranted and sometimes it's not, but the law creates certain rights for new spouses that will impact the whole family. Recently a reader sent me a note asking about a potential new spouse's rights to his father's home. His question and my reply are below:

"My 75 year old father moved back to east coast Canada when his wife of 40 years died of cancer. He used the money from the sale of their home to purchase a home in Nfld. My sister and I had great concern should he meet someone new who didn't have the best intentions or their own financial means to support themselves therefore becoming dependant on my father for everything including his home and property. So we thought in order to protect him from any kind of ill will we suggested he put one of us on the deed of new home at which time he decided to put both my sister and I on the deed. He has now met a lady 10 years younger and are now talking about marriage. I guess my question is what rights will she have with my dad's home should he pass before her."

Though I am going to answer the question you asked, I also want to raise a preliminary, but very important, point. I can't help but notice that all of the concern here is on the part of you and your sister. You haven't said that your father has concerns or wants to know his potential wife's rights. I get it that you want to protect your father, but I hope that if his wishes diverge from your own, you intend to listen to him. It's his house to do with as he wishes, after all.

The question is specific to Newfoundland and Labrador, and so will the answer be. Laws are different in other provinces so readers should know that the information given here may not be applicable to other provinces and territories.

In Newfoundland, inheritance rights only kick in when people are legally married. If your father and his girlfriend live together as a common-law couple, she will not gain any specific rights to the house. As with any arrangement, if it turned out that she paid for everything in the house and was left with nothing, she would have a claim against your father's estate under the concept of unjust enrichment. This is a fairness doctrine that means if she pays for thousands in renovations or improvements to the house, she is entitled to recover that expense if someone else gets the house.

If your father and his girlfriend should marry, suddenly the picture is quite different. I'll assume for the purpose of answering this question that the two of them will live in the house as their matrimonial home. I'll also assume that you, your father, and your sister are on title as joint owners and not tenants-in-common. If that is the case, and your father passes away before she does, the law will treat that home as a joint asset between them. She will have the right to own the home. It does not matter whether she still owns another house of her own; the important element is that this was the home they lived in together while married.

Because there are other names on the title, the matter is slightly more complicated than that. Your father does not own the whole house anymore because the two of you are on the title. Therefore she will have the right to inherit the share that your father owned. This would create the situation in which none of you can do anything with the title (such as selling or mortgaging) without the written consent of all three of you.

Even if your father made a will leaving the house to you and your sister, the wife's rights would prevail over the will.

The reason I mentioned at the beginning of this post that you must agree with your father's wishes is that there is a way to prevent this situation from occurring but it's your father's choice. There is nothing you can do (or should do, for that matter). If he believes that it's appropriate for his potential wife to get the home they live in, then it's up to him. Your wishes will be, legally speaking, irrelevant. If your father does not wish for her to own the home after his passing, he must ask her to sign a document called a Family Law Act Waiver. In that waiver, the wife would agree not to claim the home.

It's not that unusual that someone entering a second marriage wants to keep certain assets for his or her first family. However, your father's wish to do that needs to be balanced off against other obligations. If he marries his girlfriend, she automatically becomes his legal dependant (and vice versa) and he will have to make some provision for her in his will. If it isn't going to be the house, it could well be something else, such as a RRIF, life insurance policy, or other assets. This is normally worked out by the parties and documented not just in their wills but in a pre-nuptial agreement.

Your father should speak to an estate-planning lawyer about the situation. Though he may decide in the end not to do any of the things mentioned in this post, it's important that he turn his mind to the issues.