Legal Impact of Separation on Will and Estate Planning
To schedule an appointment, contact our law firm at 403-400-4092 or Chris@NeufeldLegal.com
A marital separation in Alberta (unlike a finalized divorce or a formalized end to an adult interdependent partner relationship) has no effect, of itself, on one's last will & testament, or any other estate planning documents that might have been legally created. No length of separation will alter this situation, with a finalized divorce being necessary to trigger the limited statutory effects set out in the Wills and Succession Act (Alberta), and it being incumbent on yourself to create a new will and estate planning documents once you have separated from your spouse and seek their removal as an executor (personal representative), trustee and/or beneficiary.
The legal effect of your separation from your spouse is that your will remains intact and unchanged. This means:
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Beneficial Gifts remain Unchanged: Any gift, inheritance, or share of your estate that was left to your spouse, after your separation, continues to go to your spouse upon your death, without regard to the circumstances and/or length of your circumstances (with very limited exceptions).
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Appointments remain Unchanged: Any role your spouse was assigned in the will, such as personal representative (executor), trustee, or guardian of your minor children, following your separation, remains unchanged (again with very limited exceptions).
And just as with your will, unless you proactively change your other legal documents, separating from your spouse will have no effect on those estate planning documents. This means that:
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Beneficiary Designations: Documents like life insurance policies, Registered Retirement Savings Plans (RRSP), Registered Retirement Income Funds (RRIF), Tax-Free Savings Accounts (TFSA), Life Income Funds (LIF) and pension plans have their own beneficiary designations that are separate from your will. A marital separation does not automatically change these. If your spouse is named as the beneficiary on these accounts, they will still receive the funds upon your death, regardless of how long you had been separated for. You must contact the financial institution to change these designations directly.
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Power of Attorney and Personal Directive: A marital separation does not automatically revoke the appointments under one's powers of attorney / personal directives. If your spouse is named as your attorney or agent in these legal documents, even if you've been separated for years, they will retain that authority. You must formally revoke these legal documents and create new ones.
Because marital separation, of itself, has no effect on your will or other estate planning documents, it is essential to create a new will and update all other estate planning documents as soon as you intend to remove your estranged spouse from any role or permissible exclusion from your inheritance. This is critical to ensuring that your assets are distributed according to your current wishes and to prevent your estranged spouse from having any legal claim or decision-making power over you or your estate.
Contact our law firm today to learn how our legal team can help you with addressing your personal legal situation as it relates to your will and other estate planning arrangements following your divorce or legal separation. Contact our law firm at 403-400-4092 or via email at Chris@NeufeldLegal.com to schedule a confidential initial consultation.
IMPORTANT NOTE: This website is designed for general informational purposes. The site is not designed to answer specific questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice in respect of your individual situation nor use it as substitute for individual legal advice. If you want specific legal advice, you need to engage a lawyer under established legal engagement procedures that have been specifically agreed to by that lawyer.
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