As I sit down to write this blog, excitement is building across the city as our Ottawa Senators’ hockey season has finally begun. After long negotiations, the players and owners ultimately agreed and signed an agreement. At the same time, our teachers and the Ontario government are trying to reach an agreement which both sides can live with. In all facets of our lives, there are times when it is necessary to simply hash out the details, whether over an existing dispute or to prevent future disputes, and come to an agreement which meets the needs of all parties involved. The same is true with estate planning.
A married couple, Bob and Sue (not their real names) recently met with me to ask how they could ensure that neither would change their wills without first consulting the other. The couple had been happily married for some time but just wanted that extra comfort of knowing that no unilateral changes could be made. This was the second marriage for Sue. She was understandably concerned because her first husband had left her, rather abruptly, and had not kept promises he had made to her during their marriage.
My advice to Bob and Sue was to have a marriage agreement or contract prepared which spells out what the husband and wife agree to do with their assets if one of them dies or if their marriage ends in separation or divorce. I advised that each of them need to hire his or her own family law lawyer to represent them individually and ensure they have independent legal advice. One of the lawyers would draft the agreement while the other would be reviewing it before each of them sign.
Once the marriage agreement is finalized and signed, I suggested that their wills should be amended to include a specific reference to their signed marriage agreement and directing their executor (estate trustee) to honour the terms of that agreement.
Although not a 100% guarantee, a signed marriage agreement can make it much less likely that their wills would be challenged by an unhappy beneficiary or that either of them would circumvent what they had agreed to regarding the distribution of their estates. A little advance planning can go a long way to warding off future issues and can provide peace of mind. If this situation sounds a little like your own, consult with an estate planning professional to see if a marriage agreement makes sense for you as part of your estate planning.
P.S. Go Sens Go!!
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Blog posts pre-dated December 1, 2015 were originally published under Neff Law Office Professional Corporation.
