When a spouse is left out of the will

Q: My mother-in-law remarried 15 years ago. Her first husband died and she has no income or investments. Her current husband is 87-years-old and reports that he is leaving all his assets to his two adult children. My mother-in-law will have the use of the house only but no income as he states that her family can look after her. His two children are the executors of his will. Is this legal that she gets nothing except use of the house? And can she rent the house out and use the proceeds for her expenses for as long as she lives?

—Pete

A: Peter, your question is about your mother-in-law, her second husband and his estate plan. He intends to leave his estate and house to his adult children. After he passes, your mother-in-law can live in his house. However, you state she has no income. She is expected to rely on her family to support her. In this case, her husband has not adequately provided for his spouse and his failure may force her to take legal action against his estate, meaning she would have to sue his executor sons. This cannot be what her husband intended or expected. He should re-visit this plan with an estate lawyer since he may not have received proper estate planning advice.

Married spouses share property. Your mother-in-law, as a married spouse, has rights to share in property. Married spouses also have rights to share in the matrimonial home. These rights arise in the event of separation, divorce or the death of a spouse.

In Ontario, this right to share in property is called a family law election. Married spouses have the right to share in their partner’s estate. Your mother-in-law may already have a half-interest in any matrimonial home. The law gives her rights to share in any increased value in their family assets. This is what she would receive if they had separated. It is a complicated calculation best done by lawyers.

But common law spouses have different rights. Some provinces do not grant common law spouses property rights. They are not given the same rights as married spouses to share in estates. They must raise claims in court. These claims include constructive trust, unjust enrichment and joint venture. They can then receive interests in property. (Please see my blog post “Executor Secrets — What are a Spouse’s Rights to an Estate?” )

Has your mother-in-law signed a contract with her husband? Because if she did, she could have limited or waived her rights.

Your mother-in-law also has statutory rights to support against her husband’s estate.  If she was financially dependent on him for support, she can sue his estate. Her family is not required to support her because this is her spouse’s duty. Support can provide her with enough money to live in the house for the rest of her life.

I suggest your mother-in-law consult a lawyer now since her husband is 87 years of age. She should not wait until he passes to inform herself of her rights. This will help her understand her options to protect herself.

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Ed Olkovich is a Toronto lawyer and certified specialist in Estate and Trusts Law

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