If you’re thinking of creating a will, you may not know that your marital status – and any changes in it – can have a huge effect on how you create it, and how your estate is distributed. Not to mention if you pass away without a will, there are nuances you need to know about when it comes to your marital status. This article outlines the nuances for each marital status.
If you’re divorced, a widow or widower, or single, you would be considered single in your will. This means you don’t have a legal spouse who is accounted for in your documents.
The biggest thing to note if you’re single is what happens when you enter a common law relationship or get legally-married. In many provinces, getting married revokes any previous will, unless that will specifically includes a clause in contemplation of marriage – not exactly the thing you’re thinking about on your wedding day, but important to know.
Provinces where marriage does not revoke a will: BC, Alberta, Quebec, PEI, Newfoundland and Labrador, Yukon, Northwest Territories, Nunavut
Provinces where marriage revokes a will (unless it was made in contemplation of marriage): Saskatchewan, Manitoba, Ontario, Nova Scotia, New Brunswick (in NB, if you have a will and subsequently marry, you are deemed to die intestate while married, but it does not revoke the will)
If you’re in a common law relationship, getting a will means you can provide for your spouse, as the default rules in each province will leave your common law spouse with nothing if you pass away without a will. Read more about common law definitions in each province here.
Creating a will when you’re in a common-law relationship means that your spouse will be provided for – unfortunately, the default intestacy rules in each province don’t provide for common law spouses, so if you pass away without a will, they would have to make a claim against the estate.
In BC, two persons are spouses by law if they have lived with each other in a marriage-like manner for at least 2 years. If you end a common-law relationship, you are treated as if you had divorced, and your ex-spouse would not be entitled to gifts in your will (see below in “divorced” section).
For a definition of common law in your province, read this article.
As mentioned in the previous section, marriage revokes a will in many provinces, so it’s important to update your will when you get married.
If you’re legally married, your spouse has a claim to your estate when you pass away without a will. If you do have a will, you may want to create a “mirrored” will, which essentially just means that you default to leaving 100% of your estate to your spouse, and you “mirror” other choices in your wills. It’s important to note that if the surviving spouse wishes to change their will, they are able to – so if you want to ensure your spouse cannot change the will after you pass away, you would need to visit a lawyer (one option to address this is a mutual – or joint – will, which ensures the surviving spouse is taken care of while they’re alive, and then, after they pass, any assets would be distributed to mutually-agreed-upon beneficiaries).
You do not need to create your wills at the same time – many spouses create wills at different times.
If you’re separated but not divorced, you are still legally married in the eyes of the law – which means you need to ensure your separation agreement clearly outlines what will happen upon the death of one spouse, and the will needs to work in correlation with that separation agreement. If you do not address this, your ex-spouse may still have a claim to your estate due to spousal rights.
Because of the nuances of separation, Willful cannot accommodate separation as a marital status at this time, and you may want to seek the advice of a family lawyer or estate lawyer.
One of the big catalysts for updating a will is divorce – after all, who wants their ex to get their assets when they pass away?
In some provinces, divorce has no effect on the provisions of a will – so if you live in New Brunswick, Newfoundland and Labrador, the Northwest Territories, Nunavut, or the Yukon, you’ll want to update your will as soon as that divorce is final. Otherwise, any gifts will still go to your ex-spouse.
In other provinces, your ex won’t receive anything thanks to provincial regulations. In BC, Alberta, Manitoba, Nova Scotia, Ontario, PEI, and Saskatchewan, divorce doesn’t result in your will being revoked (nullified), but it does mean that your ex-spouse will not be entitled to:
- A gift of specific property
- A gift from your residual estate
- Act as your executor or trustee, or any other appointments
In the event that you divorce in one of the above provinces and did not remove your ex-spouse from your will, the legislation treats the will as if your ex-spouse passed away before you.
Whether you’re separating or divorcing, it’s also important to review any joint assets or joint accounts you hold with your ex-spouse, and to update the named beneficiary on any registered savings accounts or life insurance policies.
There you have it – how your marital status affects your will. Reviewing your will annually is the best way to ensure it’s up-to-date and you make any necessary changes.