Estate Matters to be Wary of on Marriage, Separation and Divorce

A change in your marital status has a definite impact on your estate planning. If this sort of change has occurred or is about to occur, you should review how this may affect your estate planning.

Upon marriage, any Will, other than one made in contemplation of the marriage and containing words to that effect, will be revoked (unless the new spouse subsequently elects to take their entitlement, if any, under your previous Will). As a result, if a new Will has not been signed, a person will die intestate (Without a Will) and have all the consequences that entails, including higher administration costs and the possibility that the assets of their estate may not be distributed to the person or persons they had intended to benefit.

If you separate from your spouse, your existing Will is still valid until revoked. Therefore, if you do not change your Will, your estranged spouse will still have all the rights set out in your Will upon your death. This may include the right to administer your estate and receive your entire estate! If you do not have a Will and pass away while separated, your estranged spouse still has the right to apply to administer your estate and receive fees for administering your estate, and receive their spousal share of your estate as set out in the Succession Law Reform Act.

If you do not draw a new Will once a divorce is final, it is as if your former spouse died before you. They will not be entitled to anything from your estate under your Will, nor will they be entitled to administer your estate. Of course, they will still have a claim to property or support that they receive as a result of the divorce proceeding. This type of claim will be payable by your estate.

If there are children from marriage that is ending, consideration should be given to their guardianship. The Court will look to the best interests of a child in awarding guardianship, which will usually mean the other surviving parent. If this is not desired, either the parents should agree upon a guardian in the event of the custodial parent’s death or the custodial parent should consider getting a court order authorizing them to appoint someone to have custody of the child upon their death.

If your marital status is changing, you should also review your beneficiary designations on your life insurance policies, Registered Retirement Savings Plans, Registered Retirement Income Funds, pension plans and any other assets that have a beneficiary designation. These should be changed, possibly designating your new spouse, if desired, to keep them out of the hands of an estranged or ex-spouse.

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