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Last Will and Testament and Child Support

truetome's picture

HI All,

First let me say, thank you for the support!!!!!

Okay so DH and I are doing our wills. In his will it states that upon his passing, I am to continue paying child support for his 3 daughters (23,16 and 13) - BM was given full custody of 3 girls while we maintain full custody of the 4th child (my 20 year old SS). I don't agree with it, but it's the law.

Now in my will, and this is the big question for everyone out there, it states that upon my passing and his passing, that MY estate has to continue paying child support to the BM!!!! WHAT???

On another note, what wording has anyone used to "disqualify" a child from receiving any inheritance in a will.
My oldest SD is not being left a thing in the will due to the negative programming she received from her BM and the horrible acts against her BF and Brother.

Thank you
AJ

P.S. Yes we have already started proceedings to have the 23 year old SD removed off child support as she has completed college and university and should learn to play grown up.

But as we all know, the courts are a strange beast. So who knows.
Cheers

truetome's picture

In Ontario, it is the law that the payor has to leave child support provisions in the will or else the courts just give it to the BM. We made provisions for our SS to get the house and money for his living expenses to upkeep the house (through a trustee) as he is disabled. The two youngest girls have provisions to divide equally any moneys from the estate (minus the house and living expenses for SS).

HRNYC - thank you, me too! LOL
Will tomorrow be ok - Great idea!!! will look into it.

truetome's picture

We fall under #3...

Here is the Law:

Continuing support payments after the payor dies
1. Your domestic contract or agreement can say that your former spouse’s estate must continue to make your support payments after his or her death.
2. Support arrangements made before March 1, 1986 or under the Divorce Act must be paid by a person’s estate only if the domestic contract, agreement or the order says they must continue after the payor’s death.
3. If you have been receiving support payments under a court order made under the Family Law Act (on or after March 1, 1986), your former spouse’s estate must continue to make support payments, unless the court order says something different.
4. If your order is made under the Divorce Act and does not say that your support payments continue after the payor’s death, or if you do not know what type of order you have, you should consult a lawyer.

The Family Responsibility Office (FRO) cannot enforce a support order against the estate of a payor after FRO has been notified of the payor’s death.

http://www.attorneygeneral.jus.gov.on.ca/english/family/familyla.pdf

I just did the calculations and if DH dies, "his" estate will be left all to me, but I have to continue paying support from "his estate". So child support per child (what we pay now) multiply that by 12 months and times it until that child leaves the BM's home. So potentially another 12 years for the youngest, 9 years for the second youngest and if we are not successful in taking the oldest off, then untils uch time as she leaves. So "his estate", ie. me is on the hook for (worst case scenario here)... $158,000 for the youngest, $118,000 for the second youngest and $26,400 for the oldest if they all don't leave home until age 25.

I guess hes getting life insurance for himself just for this. I will be damned to give up what I worked for and paid for to go to her! for three years, he didn't contribute to the house because she was getting 50% of his pay - court ordered for arrears that we were to receive, but the judge gave it to her. Long story here. Yes we had lawyers. But her lawyer submitted facified documents that we couldn't prove as false nor were we "permitted" to rebut the submissions. Again... same female judge!

truetome's picture

That was put in there by the attorney. I'm questioning it! Haven't signed a thing. Can't seem to find any answers on the web either. So I'm asking here as we all have dealt with courts way to often and at times wonder if DH/DW are REALLY worth it... I know I empathize!
THank you all for your feedback. If anything, food for thought. Thanks

Orange County Ca's picture

Toss the will, don't pay the idiot attorney. Get a Living Trust and don't leave anything to anyone you don't have to.

If there is some idiotic law that says step kids can reach through their fathers death and raid your accounts alive or dead then get a divorce from the guy. Legally separate all finances. Nobody on your accounts, half of the house in the name of your Trust as if you two were business partners, one car in each name alone.

Continue living together just don't mingle finances.

misSTEP's picture

I really don't know Canadian law but that is really messed up if that is the case.

But I do know that (at least in the US), if you give a disinherited kid a token inheritance (like say $50 or something), that they cannot contest it.

truetome's picture

Thank you Thank you Thank you... this is what I'm thinking as well. This can't be right!!! Orange County CA thank you for the great advise!

Tog, I actually know people who are still paying CS for kids in their late 20's because they are still in school and still living with BM. This system is so anti payor! We pay CS on income prior to taxes, She get the money tax free, never has to claim it. And since we make a nice income, she doesn't have to work and be able to live off the CS alone. Yes she will continue spending $ on lawyers to keep her income coming. We were denied our Section 7 expenses (extraordinary expenses, tutoring, afterschool sports, camps, etc.)for the disabled SS living with us, while she got to claim all the Section 7 expenses (swimming, post education tuition, books, dorm living, driving lessons, car emission testing, car insurance - p.s. last 3 are not section 7 expense) and we got charged interest on top of that. Men in the Ontario family courts are nothing but money bags for the BM and "Breeders" out there. I can tell you horror stories about what we have seen as "just" here in Ontario. I'm sorry for the rant.... stepping off the soap box now.

truetome's picture

Here it is straight from Revenue Canada

Tax rules for court orders or written agreements made after April 1997
Generally, child support payments made under a court order or written agreement made after April 1997 (or before May 1997 if any of the four situations mentioned above apply) are not deductible by the payer and do not have to be included in income by the recipient. Spousal support payments continue to be deductible to the payer and must be included in the recipient's income. The following explanations provide more information about these rules.

Note
For an order or agreement made after April 1997, automatic changes in the amount of support may occur in accordance with the federal, provincial or territorial child support guidelines. For more information, visit the Department of Justice Web Site.

Child support payments
Under court orders and written agreements made after April 1997, any support amount that is not identified in the order or agreement as being solely for the support of the recipient is considered to be child support. These amounts are not deductible by the payer and do not have to be included in income by the recipient.

Rags's picture

Nope, when daddy kicks the bucket the SKids get SS benefits not CS. I would not pay a cent to the opposition were I the surviving spouse in a blended family marriage. Any support I provided would be at my discretion and paid directly to or for the kid with not a penny going to the opposition in any way shape or form. I would not allow any benefit of my resources to go to the blended family opposition.

Xs and kids are on their own unless the spouses agree and include some kind of CS trust in a Will.

When we did our Wills we made it a point to protect every penny of our assets from my SS's Sperm Clan regardless of how old the Skid may have been when my bride and I may have co-deceased. In our Will each of us is the sole heir beneficiary of the other. In the event that my bride and I pass together everything goes in to trust for SS until he either completes a Bachelor's degree from a regionally accredited institution or turns 40 whichever comes first. Had my bride and I passed before the Skid aged out from under the CO my family would have bankrupted the Sperm Clan fighting for custody of SS. Had the Sperm Clan won custody they would have received nothing from our estate and only would have received my brides SS benefits for SS until he turned 18. Once he turned 18 and was accepted to a college or university our estate would pay his tuition, fees, dorm room, and meal plan, and round trip tickets to visit my family and my wife's family. Any visit to the Sperm Clan would have to be paid for by them.

The skid is now 22 and 3 years in to his USAF career. Our Will stands. He gets nothing if something happens to his mom and I until he either finishes his degree or turns 40. As his mom and I are still alive, kicking, and healthy we definitely give him gifts at our discretion. We give him what we want him to have. Most recently for his 22nd b-day we gave him gift certificates for a bedroom set and living room furniture for his first apartment. He is moving out of the barracks (Dorms in the USAF) and off base.

He is a young man of character and we have no issues with giving him a hand.

IMHO of course.

AllySkoo's picture

They do in the US too. :? I mean, you don't *have to* use a lawyer, but if there's any sort of complication it's generally a good idea. We had a lawyer draw up our wills, it cost all of $200 but it meant we got some really good advice on how to make sure MY estate went solely to my kids and not the skids (or BM) regardless of who predeceased who.

GoodBye's picture

I live in Ontario as well and have never heard of this! The way we have it set up is DH has a life insurance policy, and if he were to pass away, half of it goes to SD and the other half to me and BD. She does not get claims to our house or anything belonging to us (unless of course he wants to leave her some sentimental items which is totally understandable). I would never agree to continue to pay CS...that is completely insane. BM and her husband already have a higher income than us, plus her CS on top of that. If that idea was even suggested I would contest it until I was blue in the face.

truetome's picture

I wish that was the case... There is case law and having a female judge that hates men (and doesn't believe a child has a learning disability) didn't help the matter either.

We had a great lawyer and still got our butts kicked. All up to the judge and her/his personal prejudices against a poor BM "struggling" on her own to "survive" while BD is "living high with his new mate". Quotes from the transcripts. Meanwhile BM is living with a pilot making $150+K, she is making $65K and we are paying her another $40K
Yup... She's stuggling & poor and WE are living the high life... Justice for the "Breeder" yes. Poor BD's in Ontario are getting the squeeze so hard.

The short answer is the kid lied, says living with mom all the time, while we are paying for her post-secondary on top of her CS to BM. She stated to judge that she lives in dorm only during classes and the rest of the time she lives with BM. While we know if she spent 2 days a year in BM's home that was it. The younger kids rat on her. She has lived with her boyfriend out of province during the summers and returns to dorm during school. School is 2 hours away from BM's home. The judge didn't believe DH and our lawyer. She said she has a hard time believing that BM would lie to the court. Eventhough she has been found in contempt of court now 11 times and had DH thown in jail for a night for assulting her. Until the video evidence showed that in fact she assaulted him (verbally and attempted to strike him). These BM's are off their rockers and judges believe them! So much for the women's movement. Might just call it the "breeders movement" because as a NON-BioMother and a female with a very moral compass certainly get nothing out of all these "laws to protect women's rights" (speaking in the family law sense only). My SS and I have been the "victims" in this court battle with the BM. I get that she is "angry" and "upset" that he left. Oh wait, she cheated on him, served him with divorce papaers, took his house, and then another and yes she is the "victim" in all this... OMG I just ranted. 8.5 years of hell with this BM and still going.... Single girls, non-biomoms.... I'm not sure any man is worth it in the short term. However, I do love DH and in another 10 years this too will be over.

truetome's picture

You are very lucky. We had a 'sympathetic judge" who read the riot act to the BM and her lawyer. Made them both read an article about how lawyers make these cases more acrimonious and how BM needed to smarten up and think of her children. That was 1 judge in 43 court appearences. The file is 4 document boxed big and that 1 judge called it themost acrimonious file SHE has ever seen as far as the BM is concerned.
So like I said, you are very lucky. When a judge sees a BF (sucessful) with a new wife (also sucessful) they automatically want to punish the BF. That has been our experiences in court 42 out of the 43 appearences (23 since I've been around).

I guess if all I had to do was lie and get paid for it. why wouldn't I? Oh wait! I have amoral compass and wouldn't put my x or kids through such an ordeal. Yet alone ME!!!!

truetome's picture

and yet she doesn't.
She double diped regarding daycare as well. Had government subsidy pay for it, while DH had court order to pay for it. I contaced Revenue Canada and reported her. Nothing was done.
I'm sure she can teach a class on how to fraud the government to make the most of your income.

steplifesux's picture

I've seen this happen to a dear friend of mine.
So let's set the scene,

Your married and have minor skids, in this scenario or most, it DOES NOT matter what the custody agreements are, a horrible thing happens and your spouse passes away., WITHOUT a will, your skid or rather their representative (usually BM) can and most likely will take half of your EVERYTHING! The only thing exempt would be life insurance policy and that's only if they are not named as a beneficiary.
Seen this happen, could you imagine going through the loss of the love of your life, and all of a sudden being slapped with a court order for half of your savings, Equity of your home, his personal affects, vehicles etc.. ?

After we watched speechless at that, happen to our friend, my DH and I immediately went to an estate attorney to protect ourselves bc his baby mama would do the exact same thing to me while probably smiling the entire time.
The law in our state, says as long as there is a will in place willing something (even just a dollar) then the estate can not be touched by minors or their representatives. Don't get me wrong, the option to contest the will is always there, but not guaranteed a win.
My DH makes a great deal of money, and we are financial comfortable, but with that being said, we have both worked extremely hard, and saraficed a lot to get to this point. I will be damned if a worthless white trash baby mama is going to swoop in and take that away from me and the other children. So we are now protected, to sum it up, our wills ( yes we both have them and also have a joint will, in the case something happens to both of us) states, skid gets a sum of $1,000 and some personal effects ( which are listed specifically in will). Our life insurance polices are also only in our names for beneficiaries, so those are not in jeopardy of being touched. In the event something happens to both of us, we have named family members as beneficiaries that we trust to take care of our children. Now, let me be clear, we are NOT trying to cut out skid from inheritance, it's the BM. She would squander any monetary gain of skid, and eventually he would be left with nothing, DH and I have an agreement, we will follow through with the $1,000 granted in the will, but the surviving parent will make sure that the child is taken care of. For example. If something ( God forbid) happens to my DH while skid is still a minor, I will continue to pay for his private schooling, his uniforms, and I would continue to pay BM child support ( although I wiould decrease the amount ) as child support can not be court ordered after death in our state, and BM would be able to fill for my DHs social security death benefits and would gain money each month from that. I would most likely never see that skid again ( which would be fine by me) but I would stay in contact with his maternal grandparents and make sure his needs were met. I would also follow through with the extras we give our children like a car a 16, bday and other holiday gifting. And a trust fund would be set up for college or adult hood use. My DH and I also both have grown children as well as minor children our wills are set up differently for the adult kids.

I know it's an awful thought, but Step parents need to protect themselves !! Being in a step relationship means there's always an outside person. When death comes so do vultures usually in the form of BMs. Just some food for thought.
If you don't already have something in place to protect you, I highly highly ( can't say that enough) recommend you get it.

LikeMinded's picture

We got two separate living trusts, where we will our estate to eachother. We're in the U.S.

Can this be done in Canada?

LikeMinded's picture

Ok, so my DH is asking this, just out of curiosity:

Is there any way you could write up papers so that you become divorced upon your death? For example, draw up some divorce papers with your DH and demand that they be filed upon your death and before the disbursement of your WLL?

I know it's a stretch, but sneaker lawyers have ways, and you should find a lawyer who knows a loophole.

Rags's picture

Um... you don't have to pay CS in your will. Once DH kicks you should be his sole beneficiary. Once you kick... leave your money to who you wish.

If your CO is that screwed up have your lawyer initiate immediate action to get that resolved.

In our Will we are each the other's sole beneficiary and in the event of our joint demise it all goes into trust for the Skid until he is either 40yo or graduates with a Bachelor's degree from a regionally accredited college or university whichever is first.

Why reward the BM for spawning in your Will? I wouldn't.