I am separated – do I need to make or change my Will?
I am always surprised at how many people do not have a Will, despite having children and significant assets. Of course, facing our own mortality is not a pleasant experience and many of us delay and rationalize until something happens in our lives that forces the issue. A loved one becomes ill or passes away, or their marriage ends and their family law lawyer raises the issue. Certainly, this is one of the first issues I address when meeting with a family law client. In short, a Will is an essential document which will almost certainly ease the burden for those you leave behind.
Dying without a will can have serious and unintended financial consequences. If you are separated from your spouse, the consequences are likely to be even more significant. You probably do not intend for your estranged spouse to inherit most or even all of your estate should you predecease him or her, but this is what is likely to occur if you do not have a Will. You may be in the process of negotiating or litigating the division of family assets and you may not have given any thought to what happens to your share of the assets if you die before the division is complete. No doubt you want your children or your parents or your dog to get your assets before your former spouse but, without a Will, you have no say. Your property will be distributed pursuant to the Succession Law Reform Act which gives the surviving spouse the first $200,000 and half of the remainder. This may result in a significantly different division of assets than would have taken place in the family law proceedings. So, make a Will and then you have at least some control.
The reason you have only some control is that your spouse can elect to set aside the Will and proceed with a division of property under the Family Law Act as though both parties were still alive. But that’s fine. He or she has the same entitlement as if you were alive. After your property is equalized under the FLA, your Will governs the distribution of your remaining assets.
Estate planning is an important part of #separation, #divorce, and #equalization.
Written by Simonetta Lanzi
Author | Simonetta A. Lanzi | Family Lawyer
Simonetta practices family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces. Contact