Conversations on adoption, family, parentage and the law

Adoption, step-parents and inheritance: why you need a Will

In B.C. if a parent dies without a will,  any property falling into their estate is divided between their spouse and children.  If they don’t have a spouse, the children receive it all.

But what if the parent’s child is  not legally their child?

The courts have held that a step-child who was  not adopted by the deceased parent will not inherit in these circumstances.  (If you are looking for it in the legislation, it’s called the distribution of an “intestate estate”– where there is no will, the deceased’s parent’s estate is divided between the deceased’s spouse and lineal descendents.  See Part 10 of the Estate Administration Act).

This can have serious implications for families who are waiting for adoption or parentage paperwork to complete, or who have taken a child into their lives but have not taken legal steps to formalize the parent-child relationship.

Consider these scenarios:

A couple marry when one of them is widowed and already has a child.  The step-parent is intimately involved in the raising of that child and considers herself a mother to him;

A woman fosters a boy who then remains part of the family into adulthood.  She considers him a son, but no adoption application is ever made;

A same-sex couple have a child through surrogacy.  One of the men provides the sperm and is named as the child’s father on the birth certificate.  Both of the fathers consider themselves equal parents, but aside from an agreement with the surrogate no other paperwork is done.

In each of these cases,  if the parents die without wills that properly address this issue, these children could be left with nothing– regardless of what the parent may have wanted.   In some circumstances, the child or other family members may have to decide whether or not to pursue potentially expensive and emotionally divisive litigation.

When it comes to estates law, being a parent in act and spirit is not enough.  Even written agreements about parentage may not be enough.

What can address the problem is thoughtful estate planning.   Parents can specify in their wills exactly who is to benefit from their estate and what they are to receive, and, if necessary, document why they are making these decisions. They can also consider using beneficiary designations on life insurance, RRSPs and other plans to ensure their wishes are met.  Estate planning is important for everyone who has children, but it is particularly critical for families in these circumstances.

If you have any doubt as to whether your existing will meets the needs of you and your children, get legal advice.