The Effect of Divorce on Your Will
Amidst the many changes which accompany divorce and life beyond a marriage breakdown, one important aspect which should not be ignored is your estate plan. People do not always think about changing wills after divorce. Chances are that if you had a will prepared while you were married, you named your then spouse as the sole beneficiary, and probably also as the executor. If you have children, you may have named your in-laws as guardians. You may even have named your spouse’s family as contingent beneficiaries. For nearly all people, changing wills after divorce is important, as lives of former spouses (and their respective families) are teased apart. The wills & estates lawyers at Kahane Law Office in Calgary, Alberta help with changing wills after divorce. As a firm, we also have family law lawyers and can work with them, and you, to figure out which changes to your will after divorce make most sense.
Alberta’s New Wills Legislation and Divorce
In 2012 Alberta got new wills legislation which introduced some substantial changes regarding the effect of divorce on wills. While the testator’s wishes remain paramount, the new legislation seems to understand that changing wills after divorce is often overlooked amongst the myriad other changes taking place. As such, they have reversed the previous laws when it comes to marriage breakdown.
Previous wills legislation did not void a gift to a former spouse. this means that an ex-spouse may have remained the beneficiary of an estate, even years after a divorce. The only way to avoid this was by changing wills after divorce. However, the new legislation makes any gift to a former spouse void once the parties are divorced (the ex-spouse is deemed to have pre-deceased the testator). The appointment of an ex-spouse as the executor is also deemed to be void by virtue of the divorce. Once divorced, an ex-spouse has no involvement in your estate, either as executor or beneficiary. By these provisions we see that the courts wish to give deference to a testator’s wishes, but will require that a specific instruction be inserted into the will acknowledging that a gift is being given to a former spouse. This gift will not happen without changing wills after divorce.
Wills Changes Dealing With Minor Children
A well-drafted will should make provisions for any minor children. A guardian should be named, in the event that both parents pass away, and if the children are beneficiaries or contingent beneficiaries, a testamentary trust should be contemplated, disbursing the estate to the children once they have reached the age of majority, at periodic intervals thereafter. But what happens to these guardian provisions when a couple divorces?
Depending on the custody arrangement following divorce it is likely not necessary to put in place a primary guardian provision into the will. For example, if the divorced couple has joint or shared custody and one of the parents dies, the children will simply live full-time with the surviving parent. However, it is a good idea, if preparing a new will, to put in place a contingent guardian in the event your ex-spouse predeceases you, and you also die while any of your children are minors. This often happens when changing wills after divorce. Since wills do not expire with the passage of time, your will you draft now may see many changes in your family structure before you change your will again. Changing wills after divorce is practical because this is usually a significant change in family structure.
Joint Investments Contemplated in Your Estate Plan
Your estate plan may have components such as insurance policies, RRSPs, Pensions, or RESPs for your children. While these assets should be dealt with by your family lawyer in dividing marital assets, it is important when reviewing your estate plan that you ensure the assets have been divided, new beneficiaries named where necessary, and an understanding reached on joint assets such as RESPs with regard to how the asset will be managed and disbursed following the death of either partner. These issues are often dealt with in the divorce settlement, however they may require changing wills after divorce as well.
Practical Considerations are Paramount
Following a divorce, individuals should review their estate plan with a practical perspective. Did your name revert to a maiden name following a divorce? Is your ex-spouse named as a beneficiary or executor? Do you need a contingent guardian in the event both you and your spouse die while your children are minors? It is likely that you will require changes to your will after a divorce. Most people will want to but often do not think about changing wills after divorce. In all but the rarest of circumstances, a divorce will necessitate a new will as circumstances will have drastically changed. Consult with a qualified wills & estates lawyer to better understand your particular requirements as you do these updates.
Lawyers in Calgary For Changing Wills After Divorce
The wills & estates lawyers at Kahane Law Office in Calgary, Alberta are pleased to assist you in drafting your will and estate planning documents after your divorce. We can step you through your options and help you make decisions about changing your will after divorce. You can reach us toll-free at 1-877-225-8817, 403-225-8810 locally or email us directly here.