Family law: Separation doesn’t change formal estate documents

On behalf of Gary Kirk of Kirk Montoute Dawson LLP posted in Family Law on Tuesday, August 21, 2018.

Divorce legally changes a marriage, separation doesn’t. Family law rules in Canada are clear about this. Couples who separate but don’t go through with a formal divorce may be misguided about what happens when one partner dies. The ramifications can be stressful, especially if the person is in a relationship with someone else.

A separation doesn’t automatically change estate documents that are already in existence such as a will or power of attorney. Old wills are still valid, unless the testator changes the contents. If changes aren’t made and an estranged spouse is still named as a beneficiary, the person will end up with whatever the will indicates. This could leave a current partner with nothing. Any common law spouse would have a hard time contesting a current and legal will.

The reasons for not divorcing are varied. It could be financial or the individuals have no desire to remarry. Whatever the reasons, family property and estate issues need to be dealt with unless of course each party agrees to the status quo. However, wills can be changed even if there are still issues to be resolved regarding the separation.

A family law lawyer in Canada may be able to provide some legal clarification regarding the differences between divorce and separation and how they can affect his or her client’s life. Some people may be misguided when it comes to these aspects of the law and it may be better to get the facts, rather than rely on assumptions. By knowing fact from fiction, a person may be able to avoid a potential costly and stressful court action.

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