Estate Planning upon Separation

Legally married spouses often own a home jointly and prepare spousal wills naming their spouse as executor and beneficiary. It is common that when there is a breakdown in the relationship, the spouses no longer want the other to be their executor or to inherit their estate.

If the parties obtain a divorce, section 17 (2) of the Succession Law Reform Act nullifies the act of naming their spouse as an executor or beneficiary and construes the will as if the spouse predeceased the testator.

If the parties separate but are not yet divorced, then section 17 (2) applies as well, however, note that there is a separation deemed only if 1) the parties have lived separate and apart as a result of a breakdown of the marriage for three years preceding the date of death (a separation date must be proven), 2) there is a separation agreement, or 3) a court order or arbitration award with respect to their rights or obligations in the settlement of their affairs arising from the breakdown of their marriage.

It can take a long time for any of the perquisites of the Succession Law Reform Act to nullify your spouse’s entitlement under the will or for the spouses to deal with the jointly owned home.
In the intervening period from separation to resolution by action or time, a spouse can prepare a new will to name an appropriate executor and beneficiaries. Further, a spouse can unilaterally sever the joint-tenancy of the matrimonial home, converting title to tenants-in-common. In the event of death, each spouse’s interest in the matrimonial home will then pass through their will. If there is no will, their interest will pass according to sections 44 or 45 of the Succession Law Reform Act, and the surviving spouse may have entitlement to a portion or all of the deceased’s estate.

If you are experiencing a breakdown in your marriage, or know someone who is, our law firm is able to assist in protecting estate assets from passing to the spouse.