There are many things that we think about and plan for when we move–furniture, movers, schools, utilities… I could go on and on. There are even more things that we plan for when we move to another jurisdiction-language, taxes, visas, driving laws… and so it goes. But one thing you might never think about if you move to another jurisdiction is the impact of the matrimonial regime of your new home on your estate plan. Matrimonial laws can have a major impact on your estate plan, and not knowing what those effects might be can make the difference between your estate plan working the way it was meant to and not.
One major concern that matrimonial regimes the world over cause when considered in the context of an estate plan is how they limit a person’s ability to transfer property on death when they wish to benefit people other than their spouse. This concern often arises in second-marriage situations, but there are also many other situations where it comes up.
In Ontario, if you die with a married spouse, your surviving spouse may make a claim against you estate for property equalization under the Family Law Act instead of taking what he or she is gifted in your will or on an intestacy if there is no will. However, if you move to another jurisdiction, the matrimonial regimes which may affect your estate plan may be very different and may not provide for equalization at all. And as noted in our previous blog, most civil law jurisdictions and some U.S. states (such as California) provide for some form of community of property. Under these regimes, if you are the spouse with legal title to property, you still may not have full legal ownership of it and may not have the right to gift some part or all of it to someone other than your spouse on death. This can have a serious impact on your desired estate plan and add additional complexity when you move from a community property jurisdiction to a non-community property jurisdiction.
To make matters even more complicated, if you move internationally, conflict of laws principles may come into play and dictate that a different set of laws applies to matrimonial matters than those that apply to estate matters, which can cause some peculiar and unexpected results. If you and your spouse are separated, and/or live in different jurisdictions, different laws may apply in each of the places you live, creating further complexity. Pre-planning in the form of a marriage contract on which certain matters are agreed to, such a property rights on death, for example, may assist in some jurisdictions, but not all courts recognize them or will implement them as intended, and you may not be around to explain what your intentions were.
If this all sounds like a major headache waiting to happen, you are not alone in thinking that. Fortunately, help is available for these issues, although pre-planning before a move is vital. Remember to obtain advice before you move, and you can check one more item off your “move to do” list.
– Susannah B. Roth
In our next post, we’ll discuss a new ethos for an aging society.
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.