Do Marriage and Divorce Affect My Existing Will?

Thème: Family Law juillet 10, 2017 by Jim Jeffcott

Yes, they do.

Marriage:

In Ontario, if you have a Will prior to marriage, it is automatically revoked upon marriage (the entire Will is cancelled).  To avoid that outcome one can make a Will in contemplation of the marriage. A Will made with the marriage in mind, must contain a statement which makes reference to the upcoming marriage and the name of the spouse.  One can also provide that the will is conditional on the marriage actually taking place  To avoid being treated as if one does not have a Will or having a previous Will treated as one’s Will when one dies, one would need to do a Will in contemplation of marriage or make a new Will after the marriage.

We also recommend that people review their registered plan designations and insurance designations when one marries.  They are not revoked by marriage.

Ontario law applies to people when they die in Ontario.  The laws are different in other provinces, territories and countries. So, deciding which laws apply if the person married in one province or territory and died in another, can be unclear. It is more unclear if a person marries or dies outside of Canada.  So, we recommend that one enter into a Will and revoke any existing Wills upon marriage, or when entering into a common-law relationship.

Divorce:

If one gets a divorce, one’s Will is not cancelled. Instead, only the provisions in the Will that refer to the spouse are revoked. Which means that a former spouse, referred to in the Will will no longer be the executor, trustee or guardian, and any gifts left to the former spouse will go to someone else. Who the gifts will go to will depend on the structure of the Will.   Separation from a spouse where the couple was legally married, generally has no impact on the Will if there has not been a divorce.  Separation of unmarried spouses also has not impact of the Will but the situation regarding property claims is even more convoluted.  We recommend that clients should consider making a new Will when one gets 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.

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