Q: I am a middle-aged widower and I am planning to remarry. I want to provide for the adult children of my first marriage in my will. Do I need to do anything else?
A: You need a pre-nuptial agreement. Or, if you get married before this step is taken, the agreement with your new spouse would be called an interspousal contract.
Both documents have the same effect, and have different names simply because of when they are signed: before or after marriage.
When you marry or enter into a common-law relationship (of two years’ duration or more, according to the law in Saskatchewan), you have legal obligations to provide for your spouse in your estate under the Family Property Act and The Dependents’ Relief Act.
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If you want to do something different than what those acts require you to do, which is leaving a major portion of your estate to your spouse, then you and your spouse need to put together a proper agreement, with independent legal advice, to make those intentions clear and binding.
It’s not good enough to put it in your wills.
The two of you may agree that when the first dies, the assets of the deceased person will be distributed to his or her children when the surviving spouse finally dies. However, the surviving spouse is free to change his or her will at any time until they die.
And genuine as the promises might be when the couple makes their wills together, feelings may change when one of them has died and the survivor meets someone new and enters into a new relationship.
The couple’s wishes could also be overruled if one of the spouses dies and the survivor is no longer able to look after herself and is being cared for by someone else who has power of attorney: perhaps her adult child.
Without an interspousal contract, the person who has power of attorney may decide that, regardless of what the parent may have agreed on when making the will, the estate should be sued to obtain further assets to support the surviving spouse.
An inter-spousal contract should prevent such a court action from being successful.
A pre-nuptial agreement or interspousal contract when entering a second marriage is the only way to be sure that your children will have the share of your estate that you intended for them.
Have it done by a lawyer and ensure that your spouse receives independent legal advice. It is a crucial step and is worth doing properly. It will give you and your spouse, your children and your spouse’s children peace of mind and a much better opportunity to have a good relationship into the future.
