Divorce and Estate Planning: What You Need to Know

November 30, 2021

There’s just no way around it– separation and divorce are difficult, stressful, and complicated. When you finally get the fresh start that you are looking for after separating from a long-term partner, the last thing you wish to be thinking about is death. And yet, in the vast majority of cases, estate planning must be done at this already difficult time. This post will consider estate planning in light of separation and divorce. Therefore, let us begin by differentiating between the separation and divorce.


Defining Separation and Divorce


Separation is defined by statute as a time where a couple begins living “separately and apart” and have no reasonable prospect for resuming cohabitation. What this essentially means is that the couple has begun living independent and separate lives and they do not intend to live joined lives again. This does not mean that the couple must live in separate homes. The couple may, at this time, draft a separation agreement to work through any issues and to enable them to continue to live separately and apart. The couple remains legally married throughout the separation process.


Divorce is the legal end to a marriage. One or both parties in a former couple can apply for divorce. It will only be granted one year after the date when the couple began living separately and apart. After a divorce is granted, both parties are able to remarry.


How Are Separation and Divorce Treated at Death?


A separation does not affect your will. As you are still legally married, your spouse can still be a beneficiary or executor under your will or an attorney under your power of attorney documents. If this no longer reflects your wishes upon separation, you should make amendments to your will and/or powers of attorney. If you do not have a will and you separate from your spouse, the surviving spouse is entitled to the entire estate absolutely if you do not have children. If you do have children, your spouse still has entitlement to a large part of your estate– possibly even all of it. A lawyer can help you determine how much your estate will owe your spouse if you pass while separated.


A divorce automatically revokes all parts of your will pertaining to your former spouse. The rest of your will remains valid. Therefore, if you appointed your spouse as a beneficiary, executor, or Power of Attorney, and did not set an alternate, you will need to immediately amend your estate planning documents as they may become invalid and there may be a partial intestacy or a need to appoint a trustee because of the invalid provisions. Another thing to consider is your support obligations, such as spousal or child support. If these obligations form part of your separation agreement or divorce paperwork, they will be considered a debt due by the estate, which must be paid out before beneficiaries of your will receive their allotment.


Don’t Forget Pensions and Registered Instruments!


Beneficiary designations on pensions, life insurance policies, RRIFs, RRSPs and TFSAs are not automatically affected by separation or by divorce. If your spouse or former spouse is named as a beneficiary on these items, and you no longer wish for them to be the beneficiary, you must make these changes with the institution where they are held.


What About My Current Partner?


These issues are especially relevant if you enter into a new, common-law relationship upon separating from your spouse. Common-law relationships are not treated the same as marriages. Having a new, or even long-standing, common-law relationship does not affect the rights or entitlements of a previous married spouse until you are officially divorced and complete the proper steps to change designations to your current partner. Unless there is a divorce, a new will, or a change to beneficiary designations, it is quite likely that a separated but not divorced ex-spouse will have a valid claim to your estate and quite likely that a common law spouse will have no right to any of your estate. Moreover, if you do not have a will, and have both an ex-spouse and a common-law partner, it is likely that your common-law spouse will inherit nothing from your estate.


The best thing to do when you are in this circumstance is to consult your lawyer. They will help you to figure out where you need to make changes, and what will be the simplest, most cost-effective way to reflect your end-of-life wishes.


If you are contemplating divorce or separation, or if you are already divorced or separated and have not made changes to your documents, it is time to update your estate plan. Do not hesitate to contact an estate-planning professional at Filice Law with any questions or concerns, or to book a consultation.