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The concept of predatory marriage is a cause for concern among families and Elder Law practitioners as a growing portion of our population is exposed to potential financial predation through marriage. As an Estate Lawyer, I’ve witnessed the emotional and financial damage that predatory marriages can inflict on families.
What is a Predatory Marriage?
The term “predatory marriage” is not a common phase but is an issue that those in the legal field are dealing with more often as Canada’s population ages. Predatory marriage refers to a situation where a person marries a vulnerable individual, often someone with diminished mental capacity or physical frailty, solely to gain access to their assets and estate. The predatory spouse is often a caregiver, family friend or neighbour.
Often, the victim is elderly. The victim may misguidedly believe they have found love and companionship, or due to cognitive impairment may not even realize the marriage has occurred. After marriage, the predatory spouse takes advantage of the vulnerable victim spouse and assumes control and management of the victim’s financial affairs. Being a victim of predatory marriage can result in significant financial loss for families as vulnerable individuals can be manipulated into amending their will, changing beneficiary designations, or transferring assets.
Legal Protections: Changes to the Ontario Succession Law Reform Act
For years, a significant legal loophole in Ontario allowed opportunistic individuals to exploit vulnerable people through marriage. Marriage automatically revoked any existing will. This meant that if a person married and then passed away without creating a new will, the surviving spouse would inherit the estate in accordance with the intestacy rules as outlined in the Ontario Succession Law Reform Act, often to the detriment of the deceased’s intended beneficiaries. This legal provision left family members with few options to challenge the inheritance rights of a predatory spouse.
However, a significant change to the Succession Law Reform Act in 2022 brought about a long-overdue improvement in protecting vulnerable individuals from exploitation. As of January 1, 2022 marriage in Ontario no longer revokes an existing will. This means that if an individual marries and passes away without updating their will, the original will remains valid. This change helps ensure that the deceased’s assets are distributed according to their wishes, even if they were manipulated into marriage late in life.
How the Change Impacts Estate Planning and Predatory Marriage
The amendment to the Succession Law Reform Act represents a major shift in estate law and is a substantial victory for those advocating for the protection of vulnerable individuals. It provides much-needed stability in estate planning, particularly for older adults who may be susceptible to undue influence. The change also acts as a deterrent to potential predators who previously relied on the revocation rule to gain access to an estate.
The primary benefit of the amendment is that it preserves the deceased’s original intentions for their estate. Predatory spouses can no longer rely on the automatic nullification of a will to position themselves as the primary or sole beneficiary of the estate. Assets can continue to be distributed to the beneficiaries named in the original will, such as children, grandchildren, siblings, etc.
The change also means that there is less urgency to update wills after marriage. While it remains best practice to update your will regularly and especially after major life events such as marriage, the risk of automatic revocation upon marriage has been eliminated. This reduces the pressure on vulnerable individuals to draft new wills in the immediate aftermath of a marriage
Limitations of the Law and Continued Concerns with Predatory Marriage
While the 2022 amendment to the Succession Law Reform Act is a significant step forward, it does not entirely eliminate the risks associated with predatory marriages. Despite the positive legal changes, predatory marriage remains a concern in Ontario because the Succession Law Reform Act still states that if a married person dies intestate (without a will) the surviving spouse inherits the entire estate if there are no children. If the deceased spouse has children, the surviving spouse receives a specified amount of the estate (currently set at $350,000) and any remaining estate value is divided between the spouse and any children according to the rules of intestacy.
There are also many other rights that come along with being married in Ontario. For example, with respect to the matrimonial home, the Ontario Family Law Act states that regardless of whose name is on the title, both married spouses have equal rights to live in the home. This spousal right could be costly in the case of a predatory marriage because it means that the matrimonial home cannot be sold or transferred without the surviving spouse’s consent, even if a will names other beneficiaries.
A surviving spouse could also apply for dependents' relief under the Succession Law Reform Act. This allows the spouse to seek additional support if they were financially dependent on the deceased. Additionally, the surviving spouse can seek spousal support from the estate if they were financially dependent on the deceased.
When it comes to predatory marriages these situations often leave families devastated, and in some cases, battling in court. Unfortunately, the victim of predatory marriage is often an individual with an impaired capacity to make a choice to marry. If an individual did not have the mental capacity to understand the nature and effect of marriage, that marriage may be legally challenged. However, proving a lack of capacity or undue influence is challenging and requires compelling evidence such as medical documentation.
Protecting Loved Ones from Predatory Marriage
A predatory marriage is a form of financial elder abuse and thus vigilance, proactive estate planning, and a clear understanding of the law are essential tools in protecting the assets and wishes of your vulnerable loved ones. It’s essential to take proactive steps to protect vulnerable family members including:
Comprehensive Estate Planning
While marriage no longer revokes a will, it is still crucial to have a detailed and updated estate plan. This includes not only a will but also powers of attorney for both property and personal care. Ensuring that your loved one has appointed a trusted individual to manage their financial and personal affairs in case of incapacity helps safeguard against manipulation and financial abuse.
Detailed family discussions about estate plans can also reduce misunderstandings and potential disputes. Keeping family members informed can make it harder for predators to isolate and manipulate a vulnerable individual.
Joint Ownership and Beneficiary Designations
Be cautious about how assets are titled. Joint ownership and beneficiary designations can override the terms of a will, so it’s essential to understand how these designations affect the overall estate plan.
Capacity Assessments
If there are concerns about a loved one’s vulnerability, regular medical and mental capacity assessments can be vital. These assessments can provide evidence if the validity of a marriage is ever challenged in court.
If you suspect a case of predatory marriage or want to ensure your estate plan is robust you should consult with an Estate Lawyer. Professional guidance is crucial to navigating the complexities of estate planning and ensuring that your assets are protected. At E is for Estates we can help structure your estate in a way that minimizes the risk of exploitation.
This article is intended for informational purposes only. For personalized advice tailored to your specific circumstance, please reach out to the E is for Estates team.
Erin Watson, J.D., B.A
Barrister & Solicitor
E is for Estates
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