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Estate planning: Who inherits from you if you get divorced?

Written by: Jonathan Song (View All Posts ) Published: December 21, 2016
Categorized: Alberta, Common Law, Divorce, Edmonton, Family Law, Finances, Property Division, Separation, Wills and Estates.

When you have been married for some time, you may want to leave your spouse a large share of your estate in your Will. However, if that relationship goes sour, it’s likely your feelings about who should inherit your assets will change. Depending on the law in the province where you live, you may need to do some additional estate planning to make sure your assets are protected and distributed according to your intentions.

Ex-spouses and Wills in Alberta

In Alberta, if you are married but separated and your divorce has not been finalized in a divorce judgment, then the parts in your Will listing your ex-spouse as a beneficiary still apply unless the Will actually states that that would not be the case upon separation. (See para.25 of the Alberta Wills and Succession Act)

 The law in Alberta also says that if you are married but separated and do not have a Will, then your ex-partner could automatically inherit your estate unless (see para.63 of the Alberta Wills and Succession Act):

  1. The two of you have been separated for more than 2 years; or
  2. There has been a “declaration of irreconcilability” made under the Alberta Family Law Act; or
  3. The two of you have made an agreement on a final division of property between the two of you given your separation.

Relying on the 2 years to pass is risky. When the time comes, it might be hard for the people contesting your ex’s claim to your estate to show the court when the two of you actually separated from each other, especially if you and your ex continued to live together after the separation.

Marriage in Alberta Does not Automatically Revoke an Existing Will

Furthermore, in Alberta, getting married does not automatically revoke your existing Will so long as you were married on or after Feb 1, 2012 (para.23(2) of the same Act above). For example, maybe your Will was written when you were single and you made your parents or close friends your beneficiaries. If you then pass away after getting married, your spouse might not inherit much or anything from your estate. Or maybe this is your second marriage and, during your first marriage, you included some of your then spouse’s family members among the beneficiaries of your estate. Completing the divorce would remove your ex-spouse as a beneficiary automatically but would likely still leave her family members in your Will.

The law on these issues can get complicated and furthermore is often different from province to province. For example, in many places, getting married does revoke your existing Will. To keep things straightforward, if you are planning to get married or are going through a separation, talk to a lawyer in your jurisdiction about drafting or updating your Will so that your intentions are carried out according to your wishes.

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