Are stepchildren second class citizens in the context of estates?
I was recently consulted by someone inquiring about the estate of her stepfather. I鈥檒l call her Samantha for ease of reference.
They had a very close relationship. Samantha鈥檚 mom had passed away early on leaving stepfather as the only parental figure in Samantha鈥檚 life.
He had not fathered any children of his own and had never remarried.
Had he put his mind to it and prepared a will, there is no question that he would have named Samantha as his beneficiary.
Samantha hadn鈥檛 put her mind to his mortality either, nor to whatever estate he might leave.
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鈥檚 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.
Top of the list is the executor named in the deceased鈥檚 will.
Absent a will, which is Samantha鈥檚 situation, next up is the spouse.
Absent a spouse, then 鈥渁dult child鈥�.
That begs the question: Does a stepchild count as a child?
There is an interesting case decided by our Court of Appeal, Hope v. Raeder Estate, where the issue of whether the word 鈥渃hild鈥� in a piece of legislation includes stepchildren was squarely before the court.
The Court of Appeal decided that if the government intended to extend the definition of child to include stepchildren, like they have in family law legislation, they would have specifically done so in the legislation.
You can read that 1994 case yourself, which can be found here ().
There is nothing in the Cremation, Interment and Funeral Services Act that extends the definition of child to include stepchildren.
Samantha has no rights.
Next: 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.
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 (WESA) provides a hierarchy for how an estate is distributed when a person dies without a will and without a spouse.
It doesn鈥檛 use the word 鈥渃hild鈥�. Rather, it uses 鈥渄escendants鈥�.
The top priority default beneficiaries are the intestate鈥檚 descendants.
A stepchild is not a descendant.
Next are the deceased鈥檚 parents.
If no living parents, then the parents鈥� descendants (the deceased鈥檚 siblings, nieces and nephews).
If none of those are living, then grandparents. If no living grandparents, then the grandparents鈥� descendants (the deceased鈥檚 uncles, aunts, cousins, etc.).
Stepchildren aren鈥檛 even on the list.
Samantha has no rights at all with regard to her stepfather鈥檚 remains, his personal possessions, nor his estate generally.
Those rights might fall to her stepfather鈥檚 2nd cousin who he鈥檚 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鈥檚 pretend that Samantha鈥檚 stepfather had made a will. But he left everything to a brand new girlfriend he met the weekend before he died.
Section 60 of WESA allows a court to vary a will if it does not make adequate provision for the maintenance and support of the will-maker鈥檚 spouse or children.
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 had applied to vary the stepparent鈥檚 will saying that it didn鈥檛 adequately provide for her.
So no, a stepchild has no right to vary a stepparent鈥檚 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鈥檛 citizens at all.
Next week鈥�.what about common law spouses?
Paul Hergott
Lawyer Paul Hergott began writing as a columnist in January 2007. Achieving Justice, based on Paul鈥檚 personal injury practice at the time, focused on injury claims and road safety. It was published weekly for 13 陆 years until July 2020, when his busy legal practice no longer left time for writing.
Paul was able to pick up writing again in January 2024, After transitioning his practice to estate administration and management.
Paul鈥檚 intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.
