Estate planning involves cultivating long term plans that look after your loved ones in the event of a tragic occurrence. In BC Law, The Wills, Estates and Succession Act, which came into law in March 2014, governs the rules regarding Wills and estate matters. It contains clear rules for a number of common scenarios we encounter in family law, and it’s a topic that merits further examination.
Let’s dive into some of the common scenarios.
Will is in Place Before Marriage
Prior to the creation of the Wills, Estates and Succession Act, the law in BC stated that marriage would automatically revoke an existing Will. It assumed that the intent of your Will would obviously change with marriage, rendering any previous document moot. Under WESA, an existing Will made prior to marriage will continue to be a valid will after marriage.
With that in mind, it’s recommended you consult with a family law expert if you’d like to revise your will to include your spouse.
What if I don’t update my Will?
Unfortunately, if you haven’t adequately provided for your spouse in your Will, they have the right to challenge the Will in court. This could lead to a scenario where your Will could be revised after you die according to what the court thinks is fair.
Please Note: If you created a will before embarking on a relationship that has reached the common-law stage (at least two years living together), it’s advised to update your will to include your common-law partner. Otherwise, the above also applies to your situation.
Dying Without a Will in Place
Should you pass away intestate (without a Will) and you’re in a common-law relationship or marriage, The Wills, Estates and Succession Act contains provisions for how your estate will be divided. These provisions are as follows:
- Without children, everything goes to your spouse
- If you and your spouse have children, the spouse receives household furnishings along with $300,000. Whatever is left after this, is divided equally between the spouse (50%) and among the children (50%)
- If you have children from a former relationship, the current spouse receives household furnishings and $150,000. Whatever is left is divided equally between the spouse (50%) and among the children (50%)
Estate Planning and Separation
Unfortunately, separating from a spouse before death means they become disentitled from receiving anything under your will. This applies whether the couple were married or in a common-law relationship.
The surviving ex-spouse still has a claim under the Family Law Act to family property owned by the other, but this is where the waters muddy and it’s crucial to speak with a family law expert. For example, WESA has no impact on assets that fall outside of the deceased individual’s estate. Examples include property subject to a beneficiary designation (RRSP, TFSA) or to real property in joint tenancy. Should you need clarification about any of these issues, we’d love to chat with you!
Looking to Plan Your Will?
If you, or a loved one, is interested in discussing your unique personal situation regarding estate planning or Wills we’d love to discuss your options. Westside Family Law can assist with any legal questions you may have surrounding estate law. Contact us and we’ll be happy to assist.