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Redefining Family

Sometimes the law leads in pushing societal change forward, but often it lags far behind, particularly in the face of scientific innovation and rapid technological change.

Over the past forty years or so, even how we define family has been subject to fundamental change, and in the future it will be even more so.

By way of historical perspective, in Ontario prior to 1978, when changes were made to the law, a child born outside of legal marriage was not considered to have status as a child when that term was used in a will unless the will provided otherwise. The term child meant only a child born within legal marriage.

Today, in Ontario, almost half, and in some other jurisdictions including Quebec, more than half of children are born outside legal marriage, illustrating the importance of legislative foresight. 

In the early years after 1978, a common clause included in many Ontario wills and trusts maintained the pre-1978 concept, and expressly excluded a child born outside marriage. For many people, the legislators were perhaps ahead of their own thinking and wishes with regard to inheritance. These clauses often became part of “boiler plate”. In the face of contemporary social reality given the number of children born outside marriage, their prevalence in many existing wills and trusts raise significant legal issues, and create possible unforeseen unfairness, but as well show how going against the winds of change can create practical problems.

Today, we also increasingly face the challenges of reproductive technology in estate planning, including its impact on who is considered a child, and who is not in respect to posthumously conceived children. Because conception can now occur both before and after death, our laws and estate planning must at least consider this possibility, and how best to deal with it.

Legislatures have started to react, some positively and some negatively, with regard to allowing posthumously conceived children to have inheritance rights. Twelve U.S. states have legislation to allow intestate rights for posthumously conceived children, as does one Canadian province–British Columbia. For public policy reasons, some jurisdictions have taken the stance that allowing posthumously conceived children inheritance rights would create impracticable obstacles in estate administration.

Wills and trusts, however, can be drafted to carry out each client’s objectives, even if legislatures drag their feet. Appropriate definitions can expand the definition of child and other lineal descendants to include those who are posthumously conceived and born after a death, but with certain conditions and limitations, such as the period within which a person must be born after a testator’s death.

None of us has a crystal ball to know where the world will be in the future on these issues and how it may impact our individual situations and family members. But what we do know is that the planning we carry out today has significant and lasting impact for future generations.

Who we include as a child or other descendant in our estate planning is important, just as the changes made in 1978 in Ontario and in many other jurisdictions were to include children born outside of marriage. Science has created an opportunity that did not exist until most recently. Now the challenge is to meet this new reality in a responsible and considered way.

– Margaret O’Sullivan

Watch for our next blog post when we discuss various cross-border probate issues.

The comments offered in this article are meant to be general in nature, are limited to the law of Ontario, Canada, and are not intended to provide legal advice on any individual situation. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your personal circumstances.