Written by: MARIYA POSTELNYAK
Amid the countless financial hurdles facing Canadians, estate planning is often low on the priority list. Delaying this process is risky for everyone, but for members of the LGBTQ community, especially couples, the hurdles are more consequential.
Federal and provincial laws in Canada don’t treat LGBTQ couples differently from heterosexual couples. But “there are greater risks for the community than for other individuals simply because the absence of planning can carry greater risk for contention,” says Rose Shawlee, a lawyer at Boughton Law specializing in wills and estates.
Many of the estate-planning challenges that LGBTQ Canadians face stem from the fact that two-thirds of couples are in common-law relationships, according to Statistics Canada. This type of union can cause problems if a partner’s view clashes with those of the biological family, Ms. Shawlee notes.
She sees these conflicts play out time and time again, though one case stands out in particular. A couple in their 70s had not informed their families that they were in a spousal relationship.
“When one of them had a health care crisis, the sibling had the next closest standing to be the decision maker,” says Ms. Shawlee, who witnessed the family become embroiled in a long drawn-out dispute around their loved one’s end-of-life care. “That was traumatizing both to the individual and to their spouse.”
What many Canadians don’t realize is that estate planning goes beyond deciding the future of all the assets and possessions that outlast us. It’s about the care we receive while we’re still here. Long-term care and end-of-life care all fall under the estate-planning umbrella. However, a recent RBC study showed that a majority of Canadians don’t have a solid understanding of the estate-planning process.
“I see a lot of people who are quite shocked that a common-law spouse won’t inherit [any assets],” says Ontario-based lawyer Darren Lund, who specializes in estate planning. While the legal implications for common-law relationships differ by province, Ontario is particularly restrictive.
“If someone doesn’t leave a will here and they’re in a common-law relationship, under the current intestacy laws, that common law partner doesn’t inherit anything from the estate of the deceased,” says Leanne Kaufman, CEO of RBC Royal Trust.
For LGBTQ Canadians, the situation gets messier when families reject their spouses or make decisions misaligned with their values. “If we’re in a common-law relationship and the surviving family thinks they should have an entitlement to the estate and feel that our relationship was not spousal in nature, it can create strife and stress for the surviving spouse,” says Ms. Shawlee. “They’ll be spending a lot of time trying to establish that they have this status and therefore a legal entitlement to participate in the estate.”
Inheritances are naturally at the centre of conflicts in the absence of a will, but health care decisions are also contentious, Ms. Shawlee says. “There should be a legal document that says, I appoint you as the person who is recognized to make my health care and my personal care decisions,” she says.
“But if I don’t have that document, we have default legislation that says my spouse is my temporary substitute decision maker. And if my spouse doesn’t have a great relationship with the people who are next-in-line decision-makers, it’s an issue.”
Long-term care decisions are another key component of estate planning that can’t be overlooked. “Lots of long-term care residences are managed or operated by organizations that have a religious ethos,” Ms. Shawlee says. “If you’ve got an individual whose personal beliefs don’t intertwine with yours, it will make living in that residence extremely uncomfortable.”
Mr. Lund says having a will and power of attorney is important for choosing who makes those decisions. “They’ll decide how the person presents to the world, how they dress, where they’re living – this is particularly important for transgender people.”
To avoid these hurdles, Ms. Shawlee advises beginning the estate-planning process as soon as possible. If you’re not sure when, reflect on where you stand in relation to three key factors: children, real estate, familial ideology, and a surprising one – Americans. “I know that one seems odd but there are very significant tax implications for everybody when we end up with cross-border connections,” Ms. Shawlee says.
Kelly Rivard, a wills and estates consultant at RBC, also recommends that common-law couples get extra savvy with taxes. “Consider leaving assets with large tax liabilities to the partner, like RRSPs or other assets with large capital gains – these can be left on a tax-deferred basis,” Ms. Rivard says.
“If you left your RRSP to a sibling, the value will be taxed on your final return as income, which results in a large tax liability.”
If kids are in the equation, they should be a priority in the estate-planning process for LGBTQ Canadians. “For couples who may have complicated family dynamics where there’s a disconnect in relation to how the other surviving family members might perceive the safety and continuity of care for that child, we want to avoid those disputes,” Ms. Shawlee says.