Troubling trends in 2011 census: more risk of family disputes, more chance of elder abuse

Statistics on their own can be deceptively boring. Their impact and power come from putting them into context. I've attached an article here from Whaley Estate Litigation that does just that. It gathers together various stats recently released as part of the 2011 census and paints a picture of how Canadian lives and families have changed.

The article reaches the conclusion that the changes in Canadian society have resulted in much more complicated family arrangements. I agree that this is a problem, since so many people still don't get proper wills made. They leave their blended families or same-sex spouse to fend for themselves, often in lengthy, expensive estate litigation, when they could have saved them the trouble by having a good will done.

Another important conclusion reached by the article is that people are living longer, the incidence of dementia is rising, and more fragmented families mean less support for seniors. Nothing is as painful as a family fighting internally over a parent and his or her finances. And few things are as shocking as a senior, all alone in the world, being abused at a care facility.

If you'd like to read more, click here to see the article.

Estate Planning and Reproductive Technology

Wills have been around for hundreds of years of course, but estate planning changes constantly to keep pace with changes in society. Recently the court in BC dealt with a case in which the relationship between same-sex partners came to an end. The two female partners  had purchased sperm from a donor and both had used the sperm to bear children. When they split up, there was a dispute over who was entitled to the remainder of the sperm. The ownership of this particular item is not something that an estate planning lawyer would have dealt with twenty years ago, but is relevant today. Click the link below to read an article about this case from http://www.allaboutestates.ca/.

click here

American panel finds Canadian gay marriage valid in probate case

A New York appeals court recently dealt with a probate case in which the deceased named his same-sex partner as his spouse and sole beneficiary. As gay marriages were not available in New York, the couple had been married in Canada. This is the first time that the New York state appeals court has ruled on whether a gay marriage obtained elsewhere is legally binding for the purposes of probate. This decision should bring more certainty to estate planning for same-sex couples. Click here to read the article in the New York Law Journal.

Estate planning for same sex couples

Are the goals of estate planning any different for same-sex couples than for opposite-sex couples? No, generally not; the partners in the relationship want to look after each other financially and medically, and want to protect any children of the relationship. They also want to maximize their estates so that their loved ones get more, and the taxman gets less.

In Canada, same-sex couples have the same legal rights when it comes to inheritance as any other common-law couple. Couples can now name a same-sex spouse as a beneficiary on a pension at work, for example.

There are still a few differences between married couples and common-law couples (one that comes to mind is the dower right to a life estate in the matrimonial home in Alberta). However, that difference has no relevance to whether the couple is same-sex or not.

So what steps should a same-sex couple take to put a solid estate plan in place?

1. Make a Will with an experienced estate planning lawyer. A strong Will is essential for everyone, but particularly important if you think your extended family may disapprove of your choice of partner and decide to contest the Will. Make sure the Will names a guardian for any minor children.

2. Own your home in joint tenancy. This will give your spouse a right of survivorship in the property, so there will be no court application or other procedure problems involved in the transfer of the title. You'll know that your partner will be able to stay on in your home after you have passed away.

3. Consider designating your partner as the beneficiary of your life insurance. Even if your Will is contested or delayed, the life insurance funds will flow directly to your spouse, independent of what's happening with the Will.

4. Consider designating your partner as the beneficiary on registered instruments such as RRSP and RRIF, for the same reasons. There may also be tax benefits to doing so.

5. You absolutely MUST have an Enduring Power of Attorney and Personal Directive in place to allow your partner to make financial and medical decisions should you lose your capacity.

Taking these steps will mean that most of your estate will pass to your spouse independently of your Will. It may not be necessary for your Will to be probated, which keeps matters much more private and much less costly.