The Golden Rule of 3 years
Written by Alexandra Brugman
Associate Lawyer at Carson Law Office
AS If your separated spouse died before you
Two people who have been separated for at least 3 years, but have not legally divorced, will now be treated as divorced couples when one of them passes away. That is, if the surviving spouse is still designated as a beneficiary in the will, despite the 3+ year separation, the Succession Law Reform Act, tells us to treat the surviving spouse as if they predeceased the newly deceased. This means that the alternate(s) the deceased chose as the beneficiary (beneficiaries) may inherit the estate.
One caveat is that this change does not affect beneficiary designations in life insurance policies, RRSPs, and other instruments as many of these do not require the will’s direction to be dispersed. Those will need to be updated or one risks leaving those monies to the separated spouse still alive.
If you are on good terms with a separated spouse
If it is your intention to leave something to your now separated or ex-spouse, it is important to have a lawyer clearly write this out in your will. If you have an existing will, this intention should be re-affirmed by an amendment drawn up by one of the lawyers at Carson Law.
They don’t get to benefit from your estate automatically if you don’t have a will
Before January 1, 2022, and the changes to the Succession Law Reform Act, when a spouse passed away without a will (“intestate”), the remaining spouse could ask for a cut of the estate. Now, when married spouses have been separated for 3+ years at the time of the intestacy, the remaining spouse will not be allowed to make that request.
The Fine print
As situations differ, these are general rules that apply to many separated couples. Speak to one of our lawyers to see if this fits your situation.
Have questions about separated spouses and wills?
Contact Alexandra brugman at:
905-336-8940 x 1002
alexandra@carsonlaw.ca
Definitions:
Testator – the person who gives instructions on their will; the person who the will is regarding.
Beneficiary – a person who receives the benefit, help, or advantage from something.
Intestate – dying without a will.
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