How ‘predatory marriages’ affect property and estates

August 26, 2010 Hull & Hull LLP Estate & Trust Tags: , , , , , , , , , , 0 Comments

The August 13, 2010 edition of Lawyers Weekly featured an article by Kimberly Whaley with the above-captioned title. The article dealt with the relationship between marriage, property, and estates and the resulting risk of predatory marriages.

I think it’s safe to presume that the majority of people believe that once they have executed a Will, their carefully considered estate plans are locked in. However, the provisions people make for their loved ones upon their death are not exactly locked in. According to Ontario law, marriage automatically revokes a Will.

While shocking for many people, there are ways to avoid this unwanted consequence of marriage. For instance, where a person executes a Will in contemplation of marriage, his or her testamentary plans will survive the marriage.

The automatic revocation of a Will can lead to unfortunate and unintended results, particularly when individuals have capacity to marry, but lack the capacity to manage property and/or execute a Will. In such circumstances, a person who lacks testamentary capacity may end up the target of a greedy opportunist looking to marry for money.

In Ontario, where a person’s Will is revoked upon her marriage and she dies, her estate is distributed under succession law as if she died without a Will. According to the Succession Law Reform Act (“SLRA”), when the deceased, who dies intestate, is survived by a spouse and there are no issue, the surviving spouse takes all property of the deceased’s absolutely. Where the deceased dies with a net value of more than the “preferential share” and with a surviving spouse and issue, the surviving spouse is entitled to the preferential share, being $200,000, absolutely. After the preferential share is distributed to the surviving spouse, the surviving spouse is entitled to a distributive share, which varies with the number of children or issue surviving. If, for example, there is a surviving spouse and one child, the excess above and beyond the $200,000 is allocated equally between the spouse and the child. Where there is a surviving spouse and more than one child, the spouse is entitled to a third of the excess and the remainder is divided equally between the children. 

The scenario that immediately comes to mind is one where an elderly and frail individual is preyed upon by a younger person who sees the marriage as an opportunity to abscond with the property of the elderly spouse who lacks capacity to manage property during his/her life or execute a Will.

In my next blog, on September 6, 2010, I discuss this topic in more detail, focusing on why predatory marriages are, perhaps, too easily accomplished.  

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