In our previous blog post, Separated but not divorced: What happens if you die without a will, we explored how not updating your estate plan after separation could result in your estranged spouse inheriting your assets under BC law.
A key issue that underlies this outcome is the legal distinction between separation and divorce. While the difference may feel mainly emotional or practical while you are alive, it can have serious legal consequences after death.
Why Separation Creates Legal Uncertainty
In British Columbia, separation is not a formal legal status in the same way divorce is. Separation is simply based on real life circumstances such as living arrangements, intention, and conduct. This means that after your death, there may be no clear or uncontested evidence that you and your spouse were truly separated, especially if there was no divorce order in place.
As a result, a surviving spouse may argue that the separation was temporary, the relationship had not fully ended or that spousal rights under WESA still apply. These disputes could lead to litigation, delays, and increased estate costs.
How Divorce Changes the Estate Planning Landscape
Divorce brings clarity that a separation does not. In most cases, once a divorce is finalized any gifts made to a former spouse under a will are revoked, executor appointments of a former spouse are cancelled, and the former spouse is no longer treated as a “spouse” under WESA intestacy rules. None of these changes occur automatically and without a finalized divorce a separated spouse may continue to have significant legal rights in your estate.
Why This Matters Even If You Have a Will
As discussed in our previous post, having a will in place is not enough if it is outdated. If your will still names your spouse as a beneficiary, executor or trustee for minor children those provisions may continue to be legally effective despite the separation. At a minimum, an outdated will could potentially open the door to disputes about whether the separation was final or not.
The Risk of Doing Nothing
Remaining separated but legally married without updating your estate plan could have serious consequences. Your estranged spouse may inherit a significant portion of your estate, may retain control over the administration of your estate as executor, and your family could become involved in costly and emotionally difficult legal disputes. Taking proactive steps now can help avoid uncertainty and ensure your wishes are respected.
Conclusion
Estate planning is one of the few ways you can create certainty in situations where the law leaves questions unanswered. By understanding how separation and divorce affect inheritance rights, you can take steps to protect your assets and ensure your wishes are clear. In the next post, we will move from legal principles to practical steps, outlining exactly what separated individuals should review and update to safeguard their estate, their family, and their intentions.
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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.
