Dealing with a break up is hard. The untangling of lives is complicated and messy. The last thing a couple is thinking about is what will happen to my assets if I die? But there are so many reasons why this needs to be on the top of your to-do list.
Many people assume that once a couple separates that ends any entitlement to the former partner’s estate. This is not true.
If the couple separates (while remaining legally married) and new wills are not executed, your spouse may have an interest in your property. If married but separated spouses do not execute new wills, the old wills may still be valid.
Your married spouse has the right, on your death to elect to receive from your estate in accordance with your will or under the Family Law Act, to receive from your estate assets as if you had been divorced immediately prior to your death.
Divorce changes some of this but it does not automatically revoke your entire will. Your ex-spouse cannot be an executor or beneficiary unless specified. It is important that if you get divorced, you revoke all prior wills and create a new one.
Common-law spouses do not have any automatic rights. The beginning and end of your relationship will have no effect on your will. Unmarried partners are not considered next of kin.
If you die without a will and are living common-law, your common-law spouse will not receive a portion of your estate. If you are not married and wish to provide for your partner after you pass away, it is very important to have a will. In some circumstances, common-law spouses may apply for support under the Succession Law Reform Act or make a constructive trust claim but these claims are limited and require litigation.
It is also important that you protect your children in your will. If you die without a will, your children will receive your estate in an intestacy equally (after payment of debts). While they still may receive significant portions of your estate, without a will, it may not be divided how you or they expect it to be.
If you have ongoing support obligations to a former spouse, this duty likely forms a debt due by the estate. It must be paid before any estate is distributed to beneficiaries, such as your children or new spouse. The obligations will be outlined in an agreement or Court order.
Having a will is crucial if you want to ensure that your loved ones are protected and your possessions are distributed how you want them and transitioned properly. While Ontario may have some statutes and provisions set in place to divide your estate after your death, it surely won’t be divided the way you would have wanted.
