Wills After Separation or Divorce

What happens to a will in case of a marriage breakdown?

Anna Dunaeva DLegal Anna Dunaeva September 26, 2020

Should I make a new will in case of a family breakup in Alberta?

A family breakdown is never easy. When couples split up, they get overwhelmed with emotions, family property, spousal support, and parenting claims. Not surprisingly, they overlook the consequences of the breakup for their estate planning most of the time.

We often hear a common misconception that a simple step of separating will change your estate plans and designations accordingly. This opinion is incorrect. The legal effect of separation on your estate plan will depend on your situation. Quite often, the person you most want to manage your estate and receive your assets is cut out. Stay with us, and you will see the most popular scenarios and solutions in a minute.

What happens to a will in case of a marriage breakdown?

Simply put, until you get divorced, your old will remains valid unless you create a new will after your separation. And so, if your ex is named your executor or a beneficiary of your estate, those designations survive your separation until you formalize you divorce.

Most married couples name each other as executors and beneficiaries when they make their wills. When they separate, they forget about those arrangements in their wills, although the arrangements remain in full force until they get a divorce order.

Many people have been separated for many years and did not complete the divorce. They are tired of legal battles, do not plan to remarry, or simply underestimate the consequences of not getting a formal divorce. Many separated people start new common law relationships, meaning that they have an ex spouse who is still a formal spouse and also another spouse who is common-law. Many years later, they pass away, and a formal spouse that they haven’t seen for ages comes to the scene. Because the deceased was still legally married, the law protects the separated formal spouse and the entitlements the formal spouse has under the will. In other words, the ex could end up with most of the deceased’s property.

That is why it is essential to review the will on separation and revise it if necessary. Even if you are not sure about the details of your new will because you have not resolved all your post-separation property issues, simply change your will to the extent necessary to remove your ex. Once you have all issues settled, you can draft a new will. It looks complicated, but it is better than to leave nothing but disputes to your significant ones.

Do I need to update a will on divorce?

Divorce changes a lot in terms of formalities, and if your old will names your divorced spouse as an executor or beneficiary, such designations are of no force, and your ex is deemed to have predeceased you.

However, some spouses name only each other as executors and beneficiaries and do not make alternative designations. Others name members of their ex’s family as executors or beneficiaries. Many people have absolutely new relationships, environment, and estate plans after the divorce. All this means that their old will may fail to address their new needs. For this reason, it is still an excellent idea to review your old will upon divorce to make sure that it reflects your wishes.

Do I need to change the will after separation if we lived common law?

Suppose you lived common law, and your old will names your separated common-law spouse as an executor or beneficiary. In that case, you should revise your will immediately after the separation, to be confident that your ex common law cannot act or receive property under your will. The rule is that your ex common law is deemed to have predeceased you for the purposes of the will, and all designations you made in your ex’s favor lose effect after the separation.

However, the danger hides in determining the date of the separation. The date of separation is not always clear; the disputes over the correct date are possible, especially if the stakes are high. If your ex can prove that you still lived common law at the time of your death, the designations you made in your will remain effective, and the ex could end up with most part of your assets.

Unless it is your intention to leave your property to your ex, you should update the will quickly after separation.

Do I need to review my will when I start a new relationship?

Even if your will is clear that you wish to leave all to your children, your new formal or common-law spouse may have a claim against your estate for maintenance and support on your death. If the claim succeeds, it will trump the gifts you made to your children, and your new spouse will get a share from your estate.

For blended marriages, if both you and your spouse brought children into the family from previous relationships, the case can become even more complicated. In such instances, an estate planning lawyer can help to determine appropriate estate planning options. The lawyer will review your will and discuss your estate planning options with you. This will protect your significant ones from family disputes, confusion, wasted assets, and litigation costs.

In conclusion, review your will and estate plan on separation, divorce, remarriage, or other major life events. Double-check if your estate documents name your current beneficiaries, assets, and executors. Confirm that your estate plan is cost-efficient, maximizes the inheritance, and is overall easy to perform.


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