While it’s always advisable to update your will whenever there are major life changes that impact you or your family, it’s particularly essential when you get married, divorced, remarried or separated. In Ontario, there are strict laws around wills and asset distribution when it comes to marital status, some of which you may be surprised to learn about. Let’s review a few key takeaways so you can be sure you have all the information and that you’ve carefully protected your family and assets when drawing up a new will.
Marital status and the law
Are you currently married, living common-law, separated or divorced? These different marital statuses matter more than you may think. With regards to your estate when you pass away, it can have a significant impact that may, or may not, benefit your loved ones.
- Married
As soon as someone is legally married, it instantly revokes or cancels their current will; it’s as if it never existed. A new will should be drawn up whenever someone marries. If there is no will, the current, legal spouse is entitled to the estate. However, there are instances where a previous spouse can claim support or maintenance either with or without a will (also called ‘dying intestate’).
- Divorced
In Ontario, your will isn’t canceled or revoked when you get divorced. However, any mentions or references in your will to your now ‘ex-spouse’ will be removed and they will not have access to your assets or estate. Further, if they were previously named executor or trustee, this too will be withdrawn. Everything else outlined in your will remains the same.
- Separated
If you’ve been separated from your legal spouse for 10 days or 10 years, it still does not impact your will if you haven’t updated it since the separation. The courts still consider you legally married, and as a result, your spouse is entitled to your estate unless otherwise stated in your will, even if you now live with someone else.
Don’t have a will?
There are a couple of different scenarios if you pass without a will. An executor will be appointed by the courts to help manage your estate distribution, and in some cases, a trustee will be assigned as well. Dying intestate is naturally a complicated, time-consuming, legal affair, which can also be quite costly and eat away at your estate in legal and other fees. Here’s what can happen:
- If you’re divorced (or never married) and have a common-law spouse
Here is a surprising legal fact for many: A common-law partner has NO legal claim to your estate if there is no will, plain and simple. While they may seek support for dependant children or themselves, they won’t inherit your estate the same way as a legal spouse would. Another Ontario law to be aware of is that if your common-law partner is not on the title or deed to the property you shared, they can be legally locked out and the home will be considered one of your estate assets to be distributed, even in cases where the common-law partner contributed regularly to payments and upkeep of the home.
- If you are separated but have a new common-law spouse
If you have a current common-law spouse but did not obtain a divorce from a previous marriage, your ex-spouse can claim your estate. Some people think this is not the case if they filed a legal separation, but in the eyes of the law, you remain legally married and your legal spouse has the rights to your estate if you don’t have an updated will to reflect otherwise. There’s no denying that your marital status matters when it comes to your estate. That’s why it’s imperative to have your last will and testament drafted immediately whenever your marital status changes. Otherwise, your estate can go into the hands of the wrong people, and/or get tied up in a lengthy legal battle. Protect your loved ones and ensure your hard-earned assets go to the people you intend them to go to. The solution is simple; come and see us to draft up your will! It’s easier than you may think, and well worth the effort. At Ares Law, we’re wills and estates specialists and it’s our job to walk you through the process and let you know your options. Connect with us today by calling 705-645-8743; we look forward to meeting you!
