Estate Issues to Consider When Separating
If you are separating from your spouse, you should review your estate plan with your lawyer and consider what adjustments should be made in light of changing family dynamics. Below you will find a list of general steps to consider, but you should always obtain legal advice regarding your particular family and financial situation.
Update your will
While marriage revokes a will, separation does not. Absent an agreement which contains an estate release, if your spouse is a beneficiary of your will, separation will not prevent your spouse from taking under your will. Your spouse may also be named as your estate trustee (executor) in your will, which you may wish to change in the event of separation.
If you don’t have a will in place, and you die without a will, your spouse is entitled to share in your estate under the Succession Law Reform Act.
Keep in mind that, unless equalization and support issues have been resolved by way of a signed Separation Agreement or court order, your spouse may still be able to make a claim for equalization from your estate, or make a claim for dependant’s relief, which is akin to spousal support. Notwithstanding this, it is still important to review your will and make changes to indicate your wishes and update estate trustee appointments.
Update Powers of Attorney
In the event of a separation, you should review any Powers of Attorney you have made to determine if any changes are required. If you do not have Powers of Attorney in place, you should prepare Powers of Attorney for Property and Personal Care to ensure if something happens to you, you have the right individual making decisions on your behalf.
Change Beneficiary Designations
You may have life insurance, RRSPs or other assets that have designated beneficiaries. Review these designations to determine if any changes are required. If you have minor children, you will need to ensure there are trust provisions in place if they are going to receive funds in trust for their benefit.
Sever Joint Tenancy
Property held by joint tenancy will pass by right of survivorship to the co-owner(s). If you own property as joint tenants with your spouse, you should consider whether you want to sever the joint tenancy to prevent the property passing by right of survivorship on death.
This is not intended to be an exhaustive list but rather information about some of the most common estate planning considerations on separation. If you are in the midst of separating, speak to your lawyer about your estate planning documents and any changes you should be making.