I’m getting married this year, and my fiancé and I have agreed to get a pre-nup. I haven’t inherited my family cottage yet—but I will once my parents pass away. Is it possible to include a future asset as part of the agreement?—Grace Mckee, Kawartha Lakes, Ont.
Congrats on the impending married-ness! And the short answer is yes.
“A cottage or other inheritance can be excluded from family law claims by a domestic contract, provided it is specifically described and subject to all of the requirements of the Family Law Act, and provided that both parties understand the nature and consequences of the agreement,” says Peg Galloway, a lawyer with Lillico Bazuk Galloway Halka in Peterborough, Ont. You don’t need a lawyer to make a domestic contract (either a marriage contract or a cohabitation agreement—“pre-nup” isn’t a proper legal term under the Act). But she’d recommend that you hire one to protect the integrity of the legal document. “Remember that any contract can be set aside by a court, so it’s not simply the contract itself, but how the contract is completed that is important for protecting assets from future claims,” says Galloway.
All of the above applies to inheriting a family cottage in Ontario. Provincial laws differ, so the same may not be true for a cottage in a different province.
But wait: there are recent changes to Ontario succession laws that could play into your pre-nup (er, marriage contract) planning. Flash forward to the future, when you’ve inherited the cottage and you and your spouse, who have kids, have recently separated. (Aww, we’re sorry to hear that.) You have suddenly died. (We’re really sorry to hear that.) These legal changes mean that—good news!—even if, pre-separation, you’d left the cottage to your now ex-spouse in your will, the cottage would pass to the kids. Your ex would be considered “predeceased,” says Peter Lillico, also a lawyer with Lillico Bazuk Galloway Halka. Under the old rules, the will (which you didn’t change, because you weren’t expecting to die) would have held up. Your ex would get the cottage even if you didn’t want them to anymore.
Talk to a lawyer before you make any decisions—estate planning is tricky. Oh, and we can help too! Sign up for our new newsletter series, Family Matters, and we’ll walk you through the basics. Visit cottagelife.com/newsletters.
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