Understanding the implications of dying without an updated will in this situation is crucial to ensuring your assets are distributed as you intended.
If You Have No Will
If you pass away without a will, you are considered to have died intestate. In Canada, each province has its own intestacy laws that dictate how your assets are distributed. In BC, the deceased person’s estate is distributed according to the Wills, Estate and Succession Act (“WESA”). Under WESA, if the deceased is married and there are no surviving children, the entire estate passes to the surviving spouse – regardless of how long you were married or how rocky the relationship was. If there are surviving children, however, the spouse receives the household furnishings and a preferential share of the estate. This means that even if you have been living apart for years, your estranged spouse could inherit the majority of your assets.
If You Have an Outdated Will
If you have a will but haven’t updated it since the separation, your spouse may still be the primary beneficiary. In most jurisdictions, separation does not automatically revoke provisions made for a spouse. Unlike divorce, which can cancel spousal inheritances or executor appointments, separation keeps the legal marital status intact and it becomes a messy factual question as to whether the separation is final. Therefore, any bequests to your spouse may still be valid – or at least the subject of litigation about whether or not you and your spouse have actually legally separated.
Implications for Your Estate
- Inheritance Rights: In British Columbia, separation is a factual issue and there may not be evidence that will show clearly after your death that you and your spouse are separated unless a divorce is finalized. This could result in your estranged spouse arguing that you were not separated and inheriting the majority of your estate.
- Executor Roles: If your spouse is named as the executor in your existing will, they will likely be responsible for administering your estate, including managing assets, paying debts, and distributing inheritances.
- Guardianship of Minor Children: If you have children, the surviving spouse (even if separated) typically retains guardianship rights unless specified otherwise in a custody agreement or court order.
Protecting Your Wishes
To protect your intentions and avoid unintended consequences, consider the following:
- Update Your Will: Rewrite your will to reflect the current status of your relationship and your current wishes, including changes to beneficiaries, executors, and guardianship of minor children.
- Review Joint Accounts and Property: Joint assets, like bank accounts or property, usually pass directly to the surviving co-owner, regardless of what your will states. Consider changing joint ownership to tenants-in-common if you don’t want your spouse to automatically inherit these assets.
- Update Beneficiary Designations: Update beneficiaries on life insurance policies, pensions, and retirement accounts, as these assets typically bypass the will and go directly to the named beneficiary.
- Seek Legal Advice: Navigating the complexities of separation and inheritance can be challenging. Consult with an estate planning lawyer to ensure your assets are distributed according to your wishes.
Conclusion
If you are legally married but separated, failing to update or write a new will could result in your estranged spouse inheriting your assets, potentially against your intentions. Taking proactive steps to revise your will, update beneficiary designations, and seek legal guidance will provide clarity and peace of mind, ensuring your estate is distributed according to your wishes.
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Disclaimer: This blog post is for informational purposes only and should not be construed as financial or legal advice. Consult with qualified professionals to create a personalized estate plan suitable for your specific circumstances.
