Last will testament VS family law- matrimonial home

[pc550]

a pretty good question here, maybe someone can help.

ive simplified the scenario to keep things basic and general.

If a single parent owns a home, then gets re-married,, family law dictates that the matrimonial home be subject to equilization with the premise that each spouse has 50% ownership. New spouse moving into the residence is entitiled to their share.

now what happens if the single parent who is now married, dies and leaves in a WILL that the house shall be sold and proceeds go to their two children.

What supercedes each other? family law pertaining to matrimonial property or deceased's person's will. ??

[pc550]

or maybe i'm looking too much into this. will the deceased's spouse get half the value of the house upon sale, and the children split the remaining 50% ??

[Stillbreathing]

Scenario above applies I believe. The spouse gets 50% and the children split the remaining 50%.

[HammerDad]

There are two things that should be considered in this scenario:

1. a prenup agreement where the new spouse agrees that they are not entitled to the proceeds of the house; and

2. most importantly, a new Will AFTER marriage which sets out that the kids get the house.

Once you marry, all Wills you had when you were single become null and void. You need a new Will after marriage which sets out how your estate is to be distributed. The prenup may not be necessary if the Will is clear, but it is further evidence of your intentions and that the new spouse understands and agrees.

My wife's family went through this very same scenario. Her grandma remarried late in life. She had a prenup and an old Will from when she was single. When she died my mother-in-law brought the will to a law firm who told it was null and void, and gave the reason why (it was pre-marriage). They had to come to an arrangement with the husband so that they could get the house in their names. He was given a life-lease, but in his will, the house goes to my in-laws. It was a pain and stressful for the family.

But yeah, get a new will.

[rockscan]

You have to get a new will when you remarry anyway and that includes common law relationships. You can set out what happens with your property when you die including the house. To make it less complicated, think about what will happen in the scenario should your new partner outlive you. Do you want your new spouse to have to deal with your children?

My partner and I went through this as he needed to update his will and I needed one. The decision we came to was that I would be allowed to live in the house until my death with a portion of his estate left to maintain it (under my signature) and then when I die the kids (grandkids) split the proceeds. The lawyer said this covers any issues with me being kicked out by his kids should he die. My concern was that not only would I be grieving him, I would be forced to find a new place to live after Ive made a life with him.

You could also approach having your new spouse buy into the house so its jointly owned. Either paying you half the value or buying a portion by paying into the mortgage. That solves the issue of ownership. You could then dictate that upon new spouses death, your 50% stake is then split by your kids (grandkids).

The only thing you can't do is leave your estate to someone who isn't born yet. My partner wanted to leave everything to his grandkids should he have them. None yet. He will have to update.

Talk to your estate lawyer who will be able to craft the will how you wish. Your new partner may have a claim but that also may include a large legal bill to fight it.

[OrleansLawyer]

Family law dictates that the matrimonial home be subject to equilization with the premise that each spouse has 50% ownership.

Family law does not impact ownership. Equalization provides that one spouse pays the other spouse an equalization payment (being money), but does not give the spouse receiving equalization an ownership interest in anything.

if the single parent who is now married, dies and leaves in a WILL that the house shall be sold and proceeds go to their two children.

Every person has a right to decide how their property is handled at their passing by making a will.

However:

Death of spouse
(2) When a spouse dies, if the net family property of the deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse is entitled to one-half the difference between them.

Citation: https://www.canlii.org/en/on/laws/st...t/#sec5subsec2

The surviving spouse can treat their spouse's death as a separation, electing to take under family law rather than receive anything under the will.

[dinkyface]

'single parent' -> this parent has children from prior partner
'their children' -> they also have children together

Which children are you referring to?

Is the prior partner also supporting their children? If so, then they would have a claim on the estate, regardless of the will, I believe.