Changing your Estate Plan after separation

On behalf of Gary Kirk of Kirk Montoute Dawson LLP posted in Family Law on Monday, September 21, 2015.

The process of divorcing is often intense and can take some time to resolve. While the focus is generally on matters such as the division of property, support and when applicable, child custody, there is at least one more important thing that needs to be addressed after separation. You need to make changes to you will or, if you do not yet have one, create a will.

In many cases, married or common law couples will leave assets to a spouse. This makes sense while couples are in a committed relationship; however, usually after separating, people no longer want their ex to be a beneficiary. Unless you have signed an agreement in respect of your property or other family issues which is intended to finalize your affairs in recognition of the break-up, the designation of your spouse as an Executor and/or beneficiary of your Estate will remain effective.

Depending on your specific situation, the matters that need to be addressed will vary. If your soon-to-be ex is named as an executor, you need to select someone else. You also may need to change the way in which your matrimonial home is owned. Changing ownership to tenants-in-common makes it possible to leave your own share to someone other than the person you are divorcing, should you become deceased prior to finalizing a separation agreement.

Equally important, is changing any designation of your spouse as your Agent under a Personal Directive or as your Attorney under and Enduring Power of Attorney.

When young children are involved you need to determine whether your spouse has parental responsibility. If not, a guardian needs to be appointed. Similarly, if you want to leave anything to your young children in your will, trustees need to be named.

Even if you do not have a will but have separated, you should think about taking action to create one. This is because under the rules of intestacy, if you should die in the course of the divorce and you don’t have a will or a final separation agreement, your estranged spouse will likely inherit your assets. In most situations this is not a desirable outcome.

Related Posts: Understanding home ownership and property rights in a divorce, Travelling without children during a family law dispute, Set boundaries and rules to protect kids from child custody drama, Protecting credit amidst a family law dispute