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Is Marriage the New Dating? How Wills and Estates Lawyering Must Adapt in the 21st Century

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Goran Bogicevic via Getty Images
Goran Bogicevic via Getty Images

It's a classic scenario -- a couple walks into my law office to talk about their wills and powers of attorney, only to find me asking them unexpected questions about their intimate relationship(s);

-Are you married, dating or in a common law scenario?
-If you are married/common law, is this your first one?
-If not, have you already effected a legal divorce?
-If you have children, are they also the biological children of your partner?
-If so, how old are the children?

And the list goes on...

I won't bore you with all of the nuances as to why I ask these questions; wills and estates law is complicated and it's the lawyers' job to know the ins and outs -- not the clients'. But the answers to these questions are game changers in terms of whether one's estate plan can be carried out in accordance with their wishes.

Let's start here -- if I were interviewing a client for a will/power of attorney 100 years ago, I probably wouldn't even think to ask whether they had ever been divorced. Back then divorces were uncommon. But now marriages end in divorce all the time, and that's why my family law colleagues often say, "marriage is the new dating". (FYI these same colleagues introduced me to a fun wedding game called "who are the divorce lawyers going to be"? I think the gist of the game is self-explanatory... we really are a lovely bunch).

Regardless, when it comes to wills/estates planning, as mentioned, the state of one's intimate relationship(s) becomes critical. Although I promised not to bore you with all of the nuances, I'm going to temporarily break that promise to name a few facts to illustrate my point:

-In many jurisdictions a will is considered null and void if the person gets divorced.
-If you are separated but not divorced, and you change your will to divest your spouse, in many jurisdictions (and definitely in Manitoba) your separated spouse will still remain entitled to a portion of your estate under certain circumstances.
-If you divest your children when they are still under the age of majority, they can still be entitled under your will in many jurisdictions (including Manitoba).

In other words, for your true wishes to be carried out under your will -- it must be prepared in accordance with particular laws in your jurisdiction that happen to touch on the intersection of your intimate relationship(s).

Did you know all these things? Well, the majority of people don't. And that's because most people don't spend 10 hours a day drafting and researching in this area of law. But for wills and estates lawyers, the job now goes a lot further than just converting one's wishes onto paper. It involves a strong working knowledge of family law, an ability to ask people the tough questions and to engage in personal conversations.

Like everything else in this world, lawyering must change with the times. And the dynamics of intimate relationships in the 21st Century have drastically changed...so lawyers must adapt.

Joshua Slayen is a Lawyer and Notary Public at George & Tweed Law Corporation in Transcona, Winnipeg.

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