Oshawa Family Lawyers Assisting Clients with Estate Planning
Most people know that it is a good idea to have a will. What many people do not realize is that when you have a will prior to marriage, and then decide to get married, you must take steps to change your will and to reflect any arrangements you may wish to make for your spouse.
At Borden Family Law, we have been working with clients to help them plan for the future, and ensure that they and their loved ones are taken care of during major life changes. Often, that requires varying their wills to reflect the current state of affairs in their lives. For 17 years, we have helped our clients navigate the often complex and confusing world of estate planning and help them come to arrangements that work best for them and their family.
Why Should You Have an Updated Will?
Wills are an important means of protecting your assets and are the tool that allows you to make specific arrangements with respect to what happens with your property and other assets when you pass away.
It is never too early to have a will, particularly as you begin to accumulate significant assets such as investments, a pension, a home, a cottage, and similar other items. Wills can help avoid disagreements and fights over your estate, and allow for clarity in terms of what you want to do with your estate once you are no longer here.
Updating your will after any major life change, such as entering into a common-law relationship or getting married, is a good practice and is strongly recommended. Before you take any action, it is advisable to consult with a knowledgeable lawyer with significant experience advising clients on wills and estates, and on how such documents may ultimately impact or be impacted by any potential family law disputes.
At Borden Family Law, we have multidisciplinary experience in both wills and estates and family law, and can provide our clients with forward-thinking, proactive, and detailed advice on how to plan for the worst-case scenario.
Common-Law Spouses and Wills
When you are in a common-law relationship, your legal status changes. This can affect several aspects of your life. For instance, when you file taxes, you get certain deductions and credits because you have a spouse. If you have employer benefits, your spouse can receive those benefits (health, dental, etc.) However, common law spouses do not enjoy all the same legal rights as married spouses.
In Ontario, common-law spouses do not have the same property division rights as married couples. Common-law spouses also have no rights to inherit under Ontario’s intestacy laws. This is where wills can be useful. A will can help common-law spouses protect each other. If someone is in a common-law relationship, and they name their partner in their will, the partner will generally be able to inherit whatever is outlined in the will. Common-law spouses can also name their spouses as beneficiaries to pensions, and insurance policies.
Marriage and Wills
Along with all the changes that occur when you are in a common-law relationship, your property rights change when you are married. The house you share with your spouse is given special status and your spouse obtains a vested interest in that property, which is called the matrimonial home. This means you cannot just do what you please with it when you separate or get divorced.
If you have a will, you can decide who gets what assets, what property (other than the matrimonial home) goes to which beneficiary. If you have a will prior to marriage, it is a good idea to update it to include your spouse and any children that you may have. You might want to update your pension, and life insurance (if you have it) to list your spouse or children (or both) as your beneficiaries.
Even if you do not have a will, and you pass away, your spouse has certain entitlements. If a married spouse dies and has a will, the widow can elect, under the Family Law Act, to receive an equalization payment under the Act, or to receive their entitlement under the will. If a married spouse dies and does not have a will, the widow can elect to receive an equalization payment OR to receive their entitlement as a spouse under the Succession Law Reform Act.
Although married spouses have their choice of the above options upon death of their spouse, both spouses should have a will, and that will should be up to date and valid, in order to maximize benefits, entitlements, and protections to the surviving spouse.
Estate Planning and Second Marriages
Marriage automatically revokes any earlier will you may have had, and therefore any arrangements you may have made for children you share with your ex-spouse. This also applies when you get married for a second or third time- each consecutive marriage revokes any previous estate plans made with a previous spouse.
As such, if you have children from a former marriage, are getting re-married, and want to protect your children’s inheritance, you will want to execute a new, updated will. It is a good idea to also sign also a marriage contract with your new spouse, outlining your wishes.
In drafting a new will, you may have to be cautious about what is included, as your divorce settlement may prohibit you from making certain changes or leaving your former spouse out of your will altogether. For example: If you are obligated, as part of a divorce settlement, to keep your former spouse as a beneficiary of your pension, you might not be able to change the beneficiary to your current spouse.
Getting divorced or separating from your spouse does not automatically revoke a will like getting married does. If you separate, your former spouse is still entitled to whatever they were entitled to when you first made the will. If you divorce, some of the provisions will be revoked, which includes any gifts appointed to benefit the former spouse. However, if you get married right after divorcing your ex, the previous will is revoked. The act of getting married is what revokes a will, not the act of getting divorced.
Knowledgeable and Strategic Oshawa Family Lawyers Assisting Clients with all their Estate Planning Needs
At Borden Family Law, we have been helping clients with their family law and related matters, including estate planning, for 17 years. We understand that wills and estates are a confusing area of law with significant consequences for both you and your family. We have the experience and knowledge necessary to help you plan for the future, and to protect your assets and the people most important to you. Call us at 905-576-6090, or contact us online. Ask about our flat fees and how we can help with your estate planning needs.