Marriage, Divorce, and Common Law

Marriage, divorce and common-law relationships all have significant implications when preparing a Will. In Ontario, marriage has the effect of revoking a prior Will, unless the Will expressly states that it has been made in contemplation of a pending marriage to the new spouse. As a result, a new Will must generally be prepared after one marries.

Divorce, on the other hand, does not revoke a prior Will. This means that separated or divorcing spouses need to have new Wills prepared to reflect their new wishes. A separation agreement is critical to this process as it sets out the division of assets acquired during the marriage so that each spouse knows the extent of their property which will be subject to his or her Will. Good separation agreements will also contain a release of claims against each other’s estates, leaving each spouse free to make new Wills, as long as they keep in force any provisions such as life insurance policies that may be required by the agreement. 

Lastly, estate law is one area where, contrary to popular belief, common-law and married spouses do not have equal legal rights. In a common-law relationship, there is no automatic entitlement to share in a partner’s estate. Unless common-law partners make Wills specifically leaving assets to each other or hold assets in joint names, there is no presumptive right to a share of the partner’s estate. This often results in costly lawsuits or court applications, which can be avoided with proper planning. It is best to sit down and review your estate plan whenever faced with a change of marital status. Delays put your assets at risk of not going to the right beneficiaries.