THE BLOG

Getting Married, Separated, or Divorced? Dust off the Old Will

10/31/2013 12:02 EDT | Updated 01/23/2014 06:58 EST

The time leading up to your wedding can be stressful -- in addition to all the preparations, you have to manage the expectations of your friends and family and navigate through your religious and cultural environment. Those of you looking to get married will likely not be pleased that I am adding one more task to consider prior to the big day.

If you're getting married, you need to think about your will. In Ontario and some other provinces, getting married revokes your existing will. While there are limited exceptions to this, the document sitting on your (or your lawyer's) shelf is likely a number of years old and does not take this into account. Reviewing and revising your will when getting married is especially important where you have dependants and in the context of blended families. It is important to strike a balance between acknowledging and supporting your new relationship and respecting your existing family and your obligations to them.

Your will should also take into account any provisions relating to your assets after death included in a marriage contract or pre-nuptial agreement, if you have one. Make sure you give the lawyer drafting your will a copy of the relevant provisions so he or she can ensure that there are no gifts in the will that contradict the arrangements you made in the agreement.

You should also have a look at the beneficiary designations in your life insurance policies, RRSPs and RRIFS, pensions, and other similar products.

Unfortunately, not all marriages last. On that happy note, it is important to be aware that when you separate from your spouse in most cases nothing happens to your testamentary dispositions. This means that the gifts to your spouse in your will, your appointment of your spouse as Executor, your beneficiary designation, and the registration of your house and other assets (all as applicable) all likely remain in place. Depending on the context of the separation, this could be a very unfortunate thing, as it does not likely reflect your wishes at that time.

While you will have enough on your mind during a separation, it is important to make the appropriate revisions to your will, beneficiary designations, and jointly held assets. If you die while separated, you will want to be sure that the right people are taken care of. As with marriage contracts and pre-nuptial agreements, the lawyer drafting your new will should be provided with the relevant provisions of any separation agreement.

If you take the additional step of getting divorced, in Ontario and many other provinces your will is read as though your ex-spouse predeceased you, meaning any appointments of your ex-spouse to act as executor or trustee under the will and any gifts to him or her under the will are revoked. While it may be a source of some malevolent satisfaction to think about the law considering your ex-spouse as deceased, this remains an appropriate time to revise your will.

If the divorce is amicable (and in some cases even where it is not), it may be that you would like a trust fund set up for your children to be administered by your former spouse. You may have obligations to your former spouse under a separation agreement. It is also important to consider that what were once your back-up plans now form the main provisions of your will.

You should be aware that on divorce beneficiary designations and joint property interests are not given the same treatment as wills, so your designations and joint property interests with your former spouse will likely still be in place. As this is often not desirable, you should review these as soon as possible in the context of a divorce.

A little bit of knowledge can be a dangerous thing, and many of the items discussed above are far more nuanced than I can convey in a few hundred words in a blog post. Accordingly, please seek legal advice when dealing with your estate planning.

Talking To Your Parents About Estate Planning