Prenuptial Agreements for Second Marriages in Ontario

Why Prenuptial Agreements Matter More in Second Marriages

Increased Financial Complexity in Second Marriages

Individuals entering a second marriage often bring with them a history of accumulated wealth, liabilities, and legal obligations. These may include real estate, investments, pension plans, and debts. In addition, business interests or joint ventures from a previous relationship may remain active, requiring protection in the event of separation or death. A prenuptial agreement helps define how such assets will be managed or divided, ensuring financial clarity from the outset.

Common Concerns: Property from a Prior Marriage, Spousal Support Obligations, Inheritances

Second marriages frequently involve property or possessions acquired during a previous relationship. Without a prenuptial agreement, these assets may be subject to division under Ontario’s family property laws. Furthermore, existing spousal or child support obligations can affect financial planning in the new relationship. A prenup allows each partner to acknowledge these prior commitments while setting boundaries for new financial arrangements.

Inheritance planning is another critical concern. Many individuals wish to ensure that specific assets—such as a family cottage, heirlooms, or inheritance funds—are preserved for their biological children. A properly drafted prenuptial agreement can confirm that such assets are excluded from the division of property or clarify the intentions around their future distribution.

Desire to Avoid Legal Conflict between Current Spouse and Adult Children

In second marriages, adult children may have strong opinions about their parent’s financial affairs. Without a prenup, disputes may arise over wills, estates, or asset distribution, especially if the remarriage was later in life or after the passing of a previous spouse. A prenuptial agreement serves as a proactive tool to reduce the likelihood of legal challenges from children or other heirs. By clearly defining property rights, spousal entitlements, and financial expectations, it promotes peace of mind for both partners and their families.

Protecting Property Brought Into the Marriage

How Prenups Can Preserve Assets Acquired Before the Second Marriage

Ontario’s Family Law Act generally requires an equal division of the increase in value of family property accumulated during the marriage. However, without a prenuptial agreement (formally called a “marriage contract” in Ontario), even assets brought into the marriage could become subject to equalization if their value increases.

A prenup allows spouses to “contract out” of this default regime by specifying that certain assets—such as bank accounts, investment portfolios, or family heirlooms—will remain the sole property of the individual who brought them into the marriage. This helps protect those assets from being shared or divided later, even if they appreciate significantly during the relationship.

Addressing the Matrimonial Home and Real Estate Ownership

One of the most common concerns in second marriages involves the matrimonial home. Under Ontario law, regardless of whose name is on the title, both spouses have equal right to possession of the home during the marriage, and its value cannot be deducted from net family property. This means that even if one spouse owned the home before marriage, the full value of the home is included in the equalization calculation unless a prenuptial agreement states otherwise.

Distinguishing Personal vs. Joint Property in Blended Households

Blended families often come with a mixture of individual and joint assets—everything from vehicles and bank accounts to furniture and vacation homes. Without a prenuptial agreement, it can be difficult to determine what property should be considered jointly held and what remains personal.

A well-drafted prenuptial agreement helps clarify this distinction by:

• Listing specific assets each spouse is bringing into the marriage
• Outlining how income earned during the marriage will be treated
• Defining rules for joint purchases and shared expenses

Safeguarding the Interests of Children from Previous Relationships

Using Prenups to Clarify Inheritance Intentions

In blended families, there can be uncertainty about how assets will be divided upon death. While many spouses want to provide for their new partner, they also want to ensure that children from a previous relationship are not left out. A prenuptial agreement allows couples to define which assets will be passed on to biological children, and which may be shared with or inherited by the new spouse.

For example, the agreement can specify that a particular investment account, family cottage, or business interest will be excluded from the marital estate and directed solely to the children. This avoids future disputes and provides peace of mind for both partners.

Preventing Unintended Disinheritance of Biological Children

Without a prenuptial agreement or coordinated estate plan, there is a risk that a surviving spouse could inherit the majority—or entirety—of an estate, particularly if the deceased spouse died intestate (without a will). This could inadvertently disinherit biological children from a previous relationship.

By clearly outlining each spouse’s intentions in a prenup, it becomes easier to ensure that children receive the assets intended for them. This is especially important if one spouse has significantly more wealth or if there are strained family dynamics. The agreement can be used to carve out protected portions of the estate or to provide children with specific gifts or entitlements.

Coordination with Wills, Trusts, and Estate Plans

While a prenuptial agreement is an important part of protecting children’s inheritance rights, it should be used in conjunction with a comprehensive estate plan. This includes updating wills, establishing trusts, and naming beneficiaries on registered accounts (such as RRSPs or TFSAs) to reflect the agreed-upon intentions.

It’s also essential to ensure that the terms of the prenup do not conflict with other legal documents. A well-coordinated legal strategy can:

• Minimise the risk of contested wills
• Reduce probate delays
• Ensure that both spouses and their children are treated fairly

Managing Spousal Support Obligations from the First Marriage

Dealing with Existing Spousal or Child Support Responsibilities

One or both spouses may still be making court-ordered support payments to a former partner or for children from the first marriage. These obligations are legally binding and take priority over new financial commitments. In a prenuptial agreement, couples can acknowledge and document these responsibilities to ensure the new spouse understands the financial realities from the outset.

This can include:

• The monthly amount of spousal or child support
• The duration of those obligations
• Any pending legal reviews or future changes anticipated

By disclosing these details, both partners can plan their finances accordingly and prevent future disputes over “hidden” liabilities.

Avoiding Financial Strain in the Second Marriage

Spousal support payments can significantly affect a household’s cash flow and budgeting capacity. A prenuptial agreement can establish boundaries around income sharing, asset contribution, and the financial responsibilities each party will maintain during the second marriage.

For example, the agreement might:

• Exclude certain income from shared household use (such as income needed to meet support obligations)
• Protect retirement savings or investment growth from equalization
• Allocate responsibility for joint versus separate debts

These clauses help manage expectations, prevent overspending, and reduce the risk that one partner feels financially burdened by obligations stemming from the other’s past marriage.

Transparency in Financial Disclosure and Ongoing Obligations

Full financial disclosure is essential when drafting a prenuptial agreement in Ontario—particularly in second marriages where past obligations are involved. Courts are unlikely to uphold a prenup if it was signed without transparency or with incomplete disclosure of key liabilities.

Each party should provide:

• A detailed list of current spousal and child support obligations
• Information about any arrears or pending legal matters
• Complete disclosure of income, assets, and liabilities

Best Practices for Drafting a Prenup in a Second Marriage

Engage Family Lawyers with Expertise in Blended Family Dynamics

Choosing the right legal professionals is crucial. A family lawyer with experience in second marriages and blended families will understand the unique challenges involved—such as preserving assets for children from a previous relationship, managing prior support obligations, and clarifying expectations with a new partner.

Each party should have their own independent lawyer to:

• Avoid conflicts of interest
• Ensure both individuals understand their rights and responsibilities
• Improve the likelihood that the agreement will be upheld by a court

An experienced lawyer can also guide discussions around complex issues like the matrimonial home, retirement planning, and joint versus individual debts.

Use Mediation or Collaborative Law to Reduce Conflict

Second marriages often carry emotional weight and sensitive family relationships. To reduce tension, couples can choose mediation or collaborative law as an alternative to adversarial negotiations.

• Mediation provides a neutral facilitator to help both parties reach consensus in a respectful and non-confrontational setting.
• Collaborative law involves both spouses and their respective lawyers working together to draft an agreement that meets everyone’s interests.

Review and Update Agreements as Family or Financial Circumstances Change

A prenup should not be treated as a one-time task. Life evolves—children grow up, wealth increases, careers shift, and new health or caregiving needs may arise. That’s why it’s essential to review and update the agreement periodically, especially after:

• The birth or adoption of children
• Major changes in income or assets
• Retirement or relocation
• Significant health developments
• Changes in support obligations from a previous marriage