Stepchildren left out when it comes making decisions about a step-parent's funeral or estate

Are stepchildren second class citizens in the context of estates?

I was recently consulted by someone inquiring about the estate of her stepfather. I’ll call her Samantha for ease of reference.

The woman and her stepfather had a very close relationship. Samantha’s mom passed away early leaving her stepfather as the only parental figure in Samantha’s life. He had not fathered any children of his own and never remarried.

Had he put his mind to it and prepared a will, there is no question he would have named Samantha as his beneficiary. Samantha hadn’t put her mind to his mortality either, nor to whatever estate he might leave. But surely, his only daughter would be the one making decisions about his funeral and going through his belongings to find precious keepsakes. And surely, she would be the default beneficiary of his estate. Or not.

Let’s look at the law.

First: arranging the funeral. Section 5(1) of the Cremation, Interment and Funeral Services Act provides a hierarchy for who has the right to control the disposition of human remains.

At top of the list is the executor named in the deceased’s will. Absent a will, which is Samantha’s situation, next up is the spouse. Absent a spouse, it’s an adult child.

That begs the question: Does a stepchild count as a “child”?

There was an interesting case decided by our Court of Appeal (Hope v. Raeder Estate) where the issue of whether the word “child” in a piece of legislation includes stepchildren was squarely before the court.

The court decided that if the government intended to extend the definition of “child” to include stepchildren, like it does in family law legislation, it would have specifically done so in this legislation.

You can read that 1994 case yourself here.

There is nothing in the Cremation, Interment and Funeral Services Act that extends the definition of “child” to include stepchildren. So, Samantha has no rights.

Next is the handling the estate. Section 130 of the Wills, Estates and Succession Act provides a similar hierarchy for appointing an administrator of an estate when there is no will.

Top of the list is the spouse and next up is a child. Once again, there is nothing in that piece of legislation that extends the definition of “child” to include stepchildren.

Finally, is Samantha the default beneficiary? Section 23 of the Wills, Estates and Succession Act provides a hierarchy for how an estate is distributed when a person dies without a will and without a spouse. It doesn’t use the word “child”. Rather, it uses “descendants”.

The top priority default beneficiaries are the intestate’s descendants. A stepchild is not a descendant.

Next are the deceased’s parents. If there are no living parents then it’s the parents’ descendants (the deceased’s siblings, nieces and nephews).

If none of those are living, then its grandparents ad if no living grandparents are alive, then the grandparents’ descendants (it’s the deceased’s uncles, aunts, cousins, etc.). Stepchildren aren’t even on the list.

Samantha has no rights at all with regard to her stepfather’s remains, his personal possessions or his estate generally. Those rights might fall to her stepfather’s second cousin who he’s never met.

Another aspect of estates, where the status of stepchildren comes up, is the right of a child to apply to the court to vary a will if the child has been disinherited.

Let’s pretend Samantha’s stepfather made a will but he left everything to a brand new girlfriend he met the weekend before he died. Section 60 of the Wills, Estates and Succession Act allows a court to vary a will if it does not make adequate provision for the maintenance and support of the will-maker’s spouse or children.

So, would Samantha be able to apply to vary that will? It is actually in the context of this very issue that the Hope and Raeder Estate case was decided. A stepchild, with a very close relationship to her stepparent, applied to vary the stepparent’s will saying it didn’t adequately provide for her. But no, a stepchild has no right to vary a stepparent’s will.

I will end by circling back to answer the question I posed at the beginning of this column.

No, stepchildren are not second-class citizens in the context of estates. They aren’t citizens at all.

Next week, what about common law spouses?

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.