How does a separation affect your will?
By Jenna Lalani, Vancouver estate planning lawyer and family lawyer
Let’s say you have a Will in place. You named your spouse as a beneficiary and perhaps your young children as secondary beneficiaries, just in case something were to happen to you and your spouse. Now add in a separation between you and your spouse, mix it with a pinch of chaos and you have a recipe for disaster. Upon separation, a gift to a spouse in your Will becomes revoked under the Wills, Estates and Succession Act (WESA). You may think everything’s fine and there is no need to update your Will…wrong! If you do not update your will upon separation, the mere revocation of your spouse as a beneficiary does not allow for adequate planning for other beneficiaries, especially young children. A minor beneficiary requires an appointed trustee to manage the money and they are unable to receive the benefit until they are of age.
For a revocation of a spouse as a beneficiary, there must be clear evidence of a separation to end a spousal relationship. Married couples must wait one year prior to obtaining a divorce, however, putting a separation agreement in place immediately at separation is not only efficient and saves you money when obtaining a divorce, but is also clear evidence of a separation which bars your ex-spouse from being a beneficiary in the event of your death. Common law couples (couples cohabitating with one another for a period of two years in British Columbia, three in Alberta) often think a separation agreement is unnecessary; however, a separation agreement is evidence to support the end of a spousal relationship and it can ultimately prevent your ex-spouse from being a beneficiary.
If one spouse dies prior to finalizing a separation agreement or a divorce, the surviving spouse could make a claim to their estate under WESA. If your Will has been updated to clearly reflect that a separated spouse is not entitled, a claim under WESA cannot be made. It is therefore important to seek advice from an Estate Planning Lawyer soon after separation so these provisions can adequately be drafted.
WESA further provides that a spouse is entitled to your estate if you die without a Will. If you do not have a Will in place and you are separating, it is very important to prepare a Will immediately setting out your intentions and direction on how you would like your estate to be divided.
A separation agreement is a good first step to revoke a spouse as a beneficiary, but it is equally important to ensure your estate plan is updated. At Crossroads Law, you have the benefit of consulting with a family lawyer as well as receiving advice from an estate planning lawyer who can advise you and create a plan to protect your assets. Contact us for a complimentary consultation. For more information on estate planning and the importance of having a Will, check out our blogs.