During a separation or divorce from your spouse or common-law partner, it is important to consider who would be entitled to your property in the event of your death, as it is unlikely that you want an ex-spouse or partner to be entitled to any portion of your estate.
The determination of who will receive your property upon your death depends on a number of factors, including whether or not you have a will, if you are separated or divorced and if you are married or in a common-law relationship.
For clarification, you are in a common-law relationship and therefore have a common-law partner if you have lived with another person in an common-law relationship for a continuous period of not less than three years, if there is a child of the relationship by birth or adoption or if you have entered into a common-law partner agreement.
If you have a will, it is important to know that according to the Wills Act, separation or divorce do not revoke a will. This means that if you have a will in which you have named your ex-spouse or ex-partner as a beneficiary, your ex-spouse or ex-partner will continue to be entitled to part your estate.
In the situation that you are separated or divorced and your will continues to name your ex-spouse as a beneficiary and you commence an common-law relationship, your ex-spouse, rather than your new partner, will be entitled to a portion of your estate.
However, if you enter into an common-law partner agreement with your new partner, then your will will be revoked. Once your will is revoked, you must make a new will. If you do not make a new will upon the revocation of an old will, you will die without a will, meaning that you will die intestate.
In the event that you die intestate, your estate will be distributed as according to the Intestate Succession Act. Under that Act, your whole estate or a part thereof, depending on the number of children you have, will go to your spouse or partner until that person ceases to be a spouse or partner. If you are married, this would occur upon divorce and if you are in an common-law relationship, this would occur when you have lived separate and apart for one year, when you or your partner have gotten married, when you or your partner have entered into a different adult interdependent relationship or when you have entered into a written agreement with your partner to end the relationship.
If you die intestate and you have a spouse as well as a partner at the time of your death, your partner will be entitled to your spouse’s share of your estate only if you are living with your partner. If you are not living with your spouse or partner, then the person whom you lived with last will be entitled to a share of your estate as your spouse.
You must also consider your life insurance and RRSP designations. If you have named your ex-spouse or ex-partner as a beneficiary of your life insurance and RRSPs, the person designated as your beneficiary will receive your life insurance and RRSPs. In addition, if any joint property exists, such as a joint bank account or if your primary residence is in the name of both parties as joint tenants, your ex-spouse or ex-partner will receive that property as a result of the right of survivorship, even if you are separated.
Therefore, upon separation, if you do not wish for your ex-spouse or ex-partner to receive any portion of your estate, it is important to make a new will and to change your life insurance and RRSP designations.
Legally Speaking appears every second week in LIFE. It is intended for information purposes only. Readers with a specific legal problem should consult a lawyer. This week’s column was written by Klara Stepanik, of the Red Deer law firm Duhamel Manning Feehan Warrender Glass. Stepanik can be reached at 343-0812 or at www.reddeeraltalaw.com.