Marriage, Divorce, Separation — What happens to your Will

man signing an updated Will

During happier times, you created a Will that included your spouse after you tied the knot. Perhaps they are listed as the sole inheritor of many or even all of your assets. Everything from investments to sentimental keepsakes are possibly listed to be inherited by your spouse. Now that you are getting separated or divorced, however, what does this mean for your Will? What will happen to your property and assets if you pass away unexpectedly before updating it?

Whatever your reason for investigating the impact of marriage, divorce, or separation on your Will, this is what you need to understand.

If you have a Will and you get married.

Marriage is such a happy and beautiful occasion, but it is also a legal contract. If you have a Will before you get married, your entire Will is cancelled unless the Will was prepared with the marriage in mind. To avoid a Will being automatically revoked after your marriage, it must include the following:

  • A statement which references your upcoming marriage.
  • The name of your spouse.

If your Will does not contain this statement or convey specifically that it was made with your new spouse in mind, you must create a new Will. If you do not create a new Will and you pass away, you will be considered to have died without a Will (or intestate). When you die intestate, the rules under Ontario’s Succession Law Reform Act will apply.

If you have a Will and you get a separation. 

Unlike the impact marriage has on a Will, separations work differently. It is important to keep in mind here that divorce and separation are two different things. A separation is when a common-law or married couple who were once living together decide to live apart. If the couple is married, separation does not legally end the marriage. A divorce legally ends a marriage contract.

That being said, if you have a Will but do not update it after your separation and you die, your Will remains valid. This means that anything your ex-spouse was entitled to in your Will, they will still be entitled to if you do not update your Will after the separation. Not updating it is often the cause of legal battles we commonly see in family law in terms of Wills and Estates. In addition, any gifts listed in your Will that are addressed to a separated spouse or common-law partner will remain valid. Once again, this can only be revoked by executing a new Will or removing the gift from your current Will upon update.

If you have a Will and you get a divorce.

When you divorce your spouse if you do not update your Will it is still valid. However, unlike a separation, any provisions in your Will that refer to your ex-partner are revoked. In other words, if your ex-spouse was listed as an executor, trustee, or beneficiary, those entitlements will go to someone else. Who they will go to specifically depends on the structure of your Will.

This only works however if you and your ex-partner do not have jointly owned property. If you die after divorcing your spouse but do not update your Will, property owned jointly with a right of survivorship passes to your ex-spouse. As an example, you and your ex-spouse own a vacation property together, and you pass suddenly without having updated your Will, the ownership of the property will then go to your ex. This one of the main reasons during divorce, we caution clients to be mindful of their property and assets and how they are owned.

To avoid confusion and to save your family time, stress, and money upon your death, it is in your best interest to update your Will after your divorce. If you and your partner are separated from a common-law relationship, your Will is impacted the same way a divorce impacts a married person’s Will. However, any gifts listed to a former common-law partner in a Will are not revoked by a separation, that can only be done by updating or creating a new Will.

Any major life event such as marriage, having children, separation, or divorce, should be cause to update your Will.

Be sure to review and update your beneficiaries if required and work with an experienced family lawyer to ensure your new Will is all encompassing. Oftentimes, the task of updating beneficiaries is overlooked or forgotten about and these need to be updated directly if they are not noted within the Will itself. Particularly when it comes to beneficiaries on your insurance policies such as life insurance, RRIFs, RRSPs, or RESPs. By not updating these policies, you risk your investments and insurance being entitled to your ex in the event of your death.

Your Will is important to have, and if you currently have one that’s great. But they can cause more harm than good if you are not making updates to them when necessary. If you are currently going through a divorce or separation, or plan to be married, we can help you update your Will at Galbraith Family Law. We can ensure that your Will covers everything it needs to and can advise after major life changes what changes should be made or reviewed. If you have questions or wonder how the family law issue you are dealing with may impact your Will, give us a call today at one of our three locations. For our Toronto offices call 647-370-8965, for our Newmarket office call 289-210-4692 or you can reach us at our Barrie office at 705-230-2734. When it comes to your family, your assets & estate, do not leave anything to chance. Have your Will prepared and updated by one of our professional family lawyers today!

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Brian Galbraith

Brian Galbraith is the owner and founder of Galbraith Family Law Professional Corporation. Brian is known in the legal community for his commitment to efficiently practicing family law using technology and streamlining the divorce processes.

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