Garton & Harris

Separating Couples Must Change Their Wills Immediately

Many couples think that the process of separating from each other will automatically change their wills, powers of attorney, insurance beneficiaries, representation agreements and trusts. It does not. The two ex-spouses are in for a rude shock. If they do not actively change these documents, their ex-spouse will remain the beneficiary of their wills and retain any authority assigned to them in a power of attorney or representation agreement.

This is true even for divorcing couples as far as powers of attorney and other estate planning documents are concerned. Under British Columbia laws will unless the testator ex-spouse clearly states that their divorced spouse is to receive a bequest. But all other documents remain unchanged.

The Two Spouse Problem

This situation becomes even more challenging if the two spouses decide not to get divorced but simply separate as they have no plans to remarry. But what happens if one of the ex-spouses – E - forms a common-law relationship later in life? Then E will have two spouses: the ex-spouse – X - to whom they are legally married, and the common-law spouse – C - they have been involved with for more than two years.

Problems might arise before E’s death if E’s powers of attorney named X as the person with the authority to make decisions if E fell ill or became incapacitated. C would expect to make these decisions but might find that X has the power even though E and X might not have contacted each other for years.

After E dies, C, the common-law spouse, would expect to receive benefits under E’s will and other instruments. But if E and X did not divorce, X would likely remain the beneficiary of the will. X could receive the life insurance monies as well.

C’s only recourse would be to go to court if C and X could not reach an amicable solution. C’s problems could be avoided if E’s will and other documents had been changed when E and X separated.

When Should Changes Be Made?

Separating spouses should make quick changes to their wills, powers of attorney, representation agreements and trusts when they are certain their separation is happening. All that needs to be done is to remove the soon-to-be-ex-spouse from

  • Wills. This ensures the ex-spouse will not be a beneficiary of the will.
  • Insurance beneficiaries. Select another person or name the estate as the beneficiary. The latter ensures that the benefit amount will be distributed according to the will’s terms.
  • Powers of Attorney. Select another trustworthy person to be granted the authority to make decisions in the event absence or incapacity.
  • Representation Agreements. Assign the power to make financial or medical decisions to another trusted person.
  • Trusts. Select another reliable person to act as trustee.

Each ex-spouse can make any additional changes necessary to their wills, agreements and estate plans after the separation details have been finalized.

The impact of separating from a spouse often upsets people so much they don’t think of all the consequences the separation has on their estate plans. During a separation, it is best to consult with experienced wills and estates lawyers. They can assist spouses with making the changes necessary to completely remove an ex-spouse from their legal affairs.

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