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Ontario’s estate laws have significantly changed in the last few years, making it much more important to review your will after serious life events like a re-marriage or separation.
While second marriages used to void any existing will, new legislation that took effect in 2022 changed this.
Here’s what you need to know about estate planning during a re-marriage or separation.
Understanding recently updated legislation
Before 2022, if a couple made a will together and then divorced, a second marriage would cancel the will. This could unintentionally give part of the estate to the former spouse.
Under current rules, a will stays valid after remarriage and the former spouse is treated as if they are no longer part of the will.
Taking the right steps during a re-marriage
Estate planning is an on-going process and is especially important during significant life events. Before a re-marriage, it’s vital to:
- Review your will and ensure it still reflects your current wishes and accounts for your new marital situation.
- Add any new beneficiaries to your will. A new spouse will not automatically be recognized as a primary beneficiary until a new will is created. This is also true of any stepchildren or other parties you may want to designate to receive assets.
- Work with an experienced legal and financial team to ensure your will reflects your preferences. This is especially important when dealing with the complexities of blending a family or safeguarding any potential claims from a former spouse.
- Have a lawyer draft a marriage contract. While this isn’t formally required, it can help protect your assets and limit spousal support obligations in the event of a marriage breakdown.
- Consider a prenuptial agreement. Typically, a prenup lists all of your debts and assets and explains each party’s property rights during the marriage and a potential divorce.
Protecting your assets during separation
While separated couples used to have property rights under older legislation, this is no longer the case today. This means that if you don’t have a will and are legally separated but not divorced, your spouse will still lose any property rights upon your death and won’t be able to make a claim on your estate.
A couple is considered separated if:
- They are not living in the same residence (due to a marriage breakdown) for at least three years,
- They have an official separation agreement,
- They have a court-ordered settlement agreement,
- They have a family arbitration award.
This is especially important to note during reconciliation, as you may have to update your will to ensure your spouse continues to have property rights.
Navigating estate planning with a solid team
The information provided above is for general informational purposes only and should not be considered legal advice. Working with an experienced team, like Zeifmans, helps you avoid unintended estate planning consequences and protects your assets long-term. With the knowledge and expertise to guide clients through various milestones, we’re here to assist. Reach out to our team to learn more.
