Area of Law: Wills, Estates and Powers of Attorney
Answer # 149
How does marriage or divorce affect your Will?Region: Ontario Answer # 149
Your Will can be affected if you get married or divorced.
In Ontario, your Will is automatically revoked once you get married. This means that the entire Will is cancelled, unless the Will was made with the marriage in mind. To show that the Will was made with the marriage in mind, it must contain a statement which makes reference to your upcoming marriage and the name of your spouse. If your Will did not contain this statement, it is no longer valid after you are married, and you should therefore make a new one. If you do not, upon your death, you will be considered to have died intestate and the rules under Ontario’s Succession Law Reform Act will apply.
Since the laws across the country are not the same any longer, deciding which laws apply if the person married in one province and died in another, can be unclear. Further, if a person marries or dies outside of Canada, the decision as to which law applies becomes even more complicated. To avoid such difficulties, it is best to enter into a Will and revoke the old one upon marriage, or when entering into a common-law relationship.
A divorce has a different effect on your Will. If you get a divorce, your Will is not cancelled. Instead, only the provisions in your Will that refer to your spouse are revoked. This means that your former spouse will no longer be your executor, trustee or guardian, and any gifts you left to your former spouse will go to someone else. Who the gifts will now go to will depend on the structure of your Will. It is important to understand that separation from a spouse where the couple was legally married, generally has no impact on the Will. Because it can get confusing, you should consider making a new Will when you get divorced, or become separated from a common-law partner.
It is important to note that in most cases, beneficiary designations relating to assets, such as RRSPs, RRIFs, life insurance policies, and pensions are not affected by divorce, or separation from a common-law partner. This means that the individual will have to take steps to remove a former spouse or common-law partner as the beneficiary to prevent them receiving the asset.
Creating a valid Will can be far more complicated than most people realize. For legal advice and help in preparing a Will, Powers of Attorney, or other estate issues, contact our preferred Wills & Estate lawyers and see who’s right for you:
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