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  • Writer's picturePatricia Greco, CPA, CA

Your Will upon Separation/Divorce

Updated: Mar 1, 2020

There are so many daunting tasks to deal with during separation or divorce. Don’t forget about the implications on your will.

If your former spouse is named in your will as executor or is to receive assets from your estate, these provisions can be automatically revoked when you get divorced. Who the gifts will then go to and who will become your executor will depend and it may not be the result you want.

Separation on the other hand, where spouses were legally married, has no impact on the will. This means that after your legal separation your former spouse can be the recipient of your estate and can act as your executor if that is what is reflected in your will. If a separated spouse dies without a will, their spouse who they are legally separated from has a claim to the deceased spouse’s estate.

This can be confusing, so it is important to take counsel, if needed, to assist in your decision making. Review your will or make certain you have a will when you get separated. Do not wait until you are divorced to update your will or to put a will in place.

It is also important to note that beneficiary designations relating to TFSAs, RRSPs, RRIFs, life insurance policies, and pensions are not affected by divorce or separation. This means that the individual named as beneficiary prior to divorce may receive the asset. If your intention is for these assets to pass on to someone else, you will have to take steps to remove a former spouse as the beneficiary. Consider these assets in your will planning, and be sure the beneficiary named on these accounts and policies through your financial institution is consistent with your will.

If you marry after the creation of your will, it may automatically be revoked in its entirety upon marriage, meaning you will be considered to have died intestate. So when you remarry, you need a new will.

Do not put your estate and your will on the bottom of your “to-do” list. A major life transition like a separation or divorce has significant implications on your estate which can be managed, in part, by having a properly drafted will in place.

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