DeDominicis: Marriage or divorce and their effect on your will

Spousal relationships, or the breakdown of those relationships, can have a huge impact on your estate planning

Vanessa DeDominicisWho is a ‘spouse’ under the Wills Estates and Succession Act (WESA)?

Firstly, it is important to take a look at how WESA actually defines a spouse. A spouse includes both married and unmarried spouses who have lived with each other in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for at least two years.

This two-year requirement for couples living in marriage-like relationships to acquire the status of ‘spouse’ and be treated on the same basis as legally married persons is consistent with other B.C. Acts that define the term spouse.

Marriage

Previously, a will was automatically revoked if the will-maker married after the will was executed, unless the will expressly states that it was being made “in contemplation of marriage.”

Now a will is no longer automatically revoked by the subsequent marriage of the will-maker.

That being said, it is still strongly recommended that wills be reviewed whenever a major event, such as a marriage or birth of a child, occurs in a person’s life. A marriage is certainly an important life event and consideration needs to be given to spousal provisions in your new wills.

Divorce

Under the old law, a person would be automatically disinherited from their spouse’s will if they divorced their spouse, their marriage was annulled by the court or if there was a judicial separation. Section 56(2) of WESA, simply states that an “appointment of or gift to the surviving spouse is revoked if the spouses had ceased to be spouse.”

Note the definition of spouse above. Thus, if spouses separate and forget to re-do their wills, any appointments and gifts to the former spouse made thereunder will be revoked.

Again, this is not a reason not to update your wills. If a major life event occurs, such as a separation or divorce, it is very important to have your entire estate plan looked at by a lawyer.