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How Marriage, Divorce or Separation Affect Your Will

last will and testament

Around 50% of Canadians have made and signed a will. Making your will is a great way to protect your assets and support your loved ones after you pass.

However, it is very important to keep your will up-to-date. Bill 245, which came into effect in Ontario on January 1, 2022, has a big impact on what happens to your will after marriage, divorce, or separation.

Read on to find out exactly how getting married, divorced, or separated affects your written will.

What Happens to Your Will After You Get Married?

The law used to give spousal privileges. This meant that your surviving spouse would receive a share of your assets upon your death whether or not you made a will.

However, this no longer happens automatically. If you have made a will prior to getting married, this will trump any spousal share privileges. So your assets will pass to the original beneficiaries named.

Your spouse may still be able to make a claim to their statutory entitlement or use Dependant's Relief. However, it is important to update your will once you decide to get married to make sure it benefits your new spouse.

What Happens to Your Will After You Get Divorced?

If you get divorced, this will not automatically revoke your entire will. All the provisions that you have made for your other beneficiaries will remain in place. These will reflect the wishes of your most up-to-date will.

However, if you made your last will before your divorce, the provisions that you have made for your ex-spouse will be revoked.

This means that your ex cannot act as an executor, trustee, or guardian. On top of this, any assets or gifts you left to them will go to a different beneficiary.

Because of this, if you want to leave anything to your ex, it is a good idea to write a will after a legal separation or divorce. Wills written after a divorce or separation has taken place will still be valid.

What Happens to Your Will if You Are Separated?

If you and your spouse have separated but not divorced, the new law also prevents them from automatically claiming rights to your assets. They will also not be able to make decisions on your behalf.

Separation can be defined legally as living apart for three years or more. You can also legally acknowledge a separation using Part IV of the Family Law Act.

Because of this, if you do want to leave anything to your ex-spouse, you should update your will to mention this. Equally, if you have been separated for less than three years and don't want your will to benefit your ex, you should amend it to reflect this.

When writing a will, make sure you acknowledge that it has been made after your official separation or divorce.

Get Help Updating Your Will After a Marriage, Divorce, or Separation

As you can see, marriage, divorce, or separation can have a big impact on your will, so it is important to keep yours as up-to-date as possible. This will ensure that your assets end up exactly where you want them after your death.

Do you need help writing or updating your will in St. Catharines, Niagara Falls and the surrounding area? J. Leigh Daboll's wills and estate lawyer is ready to assist you. Contact us today to discuss your will and estate plan.


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