Marriage, Divorce and the Effects on Wills

Marriage

In many jurisdictions in Canada, getting married automatically revokes any pre-existing Will created prior to the marriage. This means that the Will is cancelled out in its entirety unless one of several conditions are met. These conditions include:

1. A declaration is in the Will indicating that it was made in contemplation of the marriage;
2. An election is filed with the provincial Estate Registrar within one year of the testator’s death; or
3. The Will is made in the exercise of a power of appointment dealing with property that would not form part of the property of the deceased if they died intestate.

Divorce and Separation

Unlike marriage, divorce does not revoke a Will – or at least, not the entire Will. In many jurisdictions, gifts or appointments made to former spouses by Will are automatically revoked if there is a subsequent divorce. In many ways, Wills are treated as though the former spouse has predeceased the person making the Will. However, these laws should not be relied on as a substitute for updating Wills for a number of reasons:

1. A Will is not revoked by the separation of legally-married spouses prior to a formal divorce;
2. There could be unintended consequences if there are no substitute beneficiaries, the shares left to them are uneven, or they are no longer appropriate; and
3. Gifts made by Will to former common-law partners are not revoked by separation and must be updated by a new Will or codicil.

In addition, in most cases, separation from a common-law partner does not affect any beneficiary designations relating to assets such as RRSPs, TFSAs, or insurance policies. Given the extensive differences in legislative regulations, it is imperative to consult an estate specialist in the Province or Territory to ensure that wills are compliant with the jurisdiction of current residency.

Depending on the jurisdiction where you live, separating spouses may discover that their separation impacts their estate plan. For couples that are separating, this process provides an opportunity to reconsider your entire estate plan and make changes to reflect the new situation.

For legal advice regarding updating your Will due to a change in family circumstances, please consult a TEP.