Will Your Ex Get Everything if You Die?

After they separate from a spouse or partner, most people expend considerable effort protecting their financial situation. People want to protect what they have, either for themselves or for their children. They also do not want their exes to get more than necessary. Everyone wants their own money that they can use, or give away, free from interference. After separation, nearly everyone is very careful in organizing finances. But, often they are NOT careful in organizing their finances if they die and that can mean that, even after a long fight, a former spouse can get way more than he or she would have gotten through family court just because the other spouse dies. That can even be at the expense of the children. In this episode of the Ontario Family Law Podcast, I will explain what you have to do to keep your ex from getting everything if you die after separation and to ensure your inheritance goes where you want it to go. 

Other pages on this website explain how separated spouses can keep their wealth for themselves after separation. This page explains how separated spouses can protect their wealth for their heirs, should they die after separation. Unfortunately, bad things happen and often former spouses are very happy to take advantage of them.

After a married couple separates, each partner should make it a priority to create a will. 

Separation does not automatically void a will. A spouse’s will remains valid until the first of the following:

1. The spouses have lived separate and apart for three years;
2. The divorce takes effect
3. The spouses sign a separation agreement;
4. There is a court order addressing the issues arising from the separation
5. There is a family arbitration award addressing the issues arising from the separation. 

A separated spouse with a will, who left most, or all, of his or her estate to his or her former partner may want to change those provisions after separating. Until one of the five above events occurs, a separated spouse is still giving his or her “ex” everything that they will set outs out. 

To be clear, married couples do not have to get married in Canada to get divorced here and married couples do not have to go back to where they were married to get a divorce. To get divorced in a Canadian Court, at least one spouse has to prove that the parties were actually married, usually, but not always, by filing the marriage certificate with the Court when asking for a Divorce Order.

If the couple were not actually married, then they do not need to get divorced. Living common law is not the same as being married. Common law couples do not need to get divorced, because all a divorce means is that people can remarry. However, common law couples can have issues related to their separation addressed in a Canadian Court – usually the court for the municipality where the children live if there are children.

It may be even more important for a spouse without a will to make one, especially where that spouse has children. When a separated spouse dies without a will and without children, his or her surviving spouse, is entitled to all of the deceased’s assets, until one of those same five events, described above, that voids a spouse’s will. So, the ex gets everything, even if the ex would have gotten nothing in Family Court!

When a separated spouse dies without a will, but has children, his or her surviving spouse gets the first $350,000.00 in the deceased’s spouse’s estate, and the rest is divided between the spouse and the children. Where there is one child, the spouse gets the first $350,000.00 and then shares the rest equally with the child. Where there is more than one child, the spouse gets the first $350,000.00 and gets one-third of any additional amounts while the children (or the children’s children) share the remaining two-thirds equally between them. When a spouse dies, his or her property is divided in this way until any of those events take place that would void a spouse’s will. To go over it again, those events are a divorce, three years of separation, a separation agreement, a court or arbitration award). After one of those events, the spouse of a deceased does not get anything automatically. Instead, the deceased’s estate is distributed to his or her nearest biological relatives. 

There is another possible wrinkle. Anyone who holds property as joint tenants with his or her former partner should also contact a lawyer to sever the joint tenancy. If the partner dies while the property is still registered as a joint tenancy, the deceased’s interest in that property will automatically transfer to the other joint tenant. At the end of a relationship, a person may no longer want to give that interest in property to a former partner but may want to transfer it to his or her other heirs pursuant to a will. That can only be accomplished by severing the joint tenancy. This applies to not only homes and land but also to joint bank accounts and other joint assets.

If someone dies shortly after separation, unless there is a will in place that reflects the separation, and the joint ownership of any assets has been terminated, the deceased’s married spouse will get the bulk of the deceased’s wealth, so it is important to speak to an estates lawyer shortly after separation to redirect that wealth to the deceased’s loved ones.

Here is an example to illustrate how this can work out really badly.

It is important to note that all of the rules set out above apply to married spouses. Common law partners do not get ANYTHING automatically unless they get it through a will. This is another important distinction between living common law and being married. The only way a common-law spouse inherits from his or her partner is if there is a will. Further, the gifts in a will to a common law partner remain valid for as long as the will remains in force. So, when a common law couple separates, each partner must change his or her will to “cut out” his or her “ex.” However, “cutting off” a former common-law partner entirely may not work if that partner was still a dependent of the deceased when he or she died.

When a parent, married spouse, or common law spouse dies, that person’s dependents can make a claim for support against the estate. A child, married spouse, or common law spouse of someone who has died can make such a claim if he or she did not receive an adequate amount from the estate to meet his or her ongoing needs. The payment of that support can take priority over the distribution of the assets in the estate. For that reason, after separation, a spouse or common-law partner will want to speak to an estate lawyer about how best to make gifts to loved ones to prevent these types of claims.

This is also why it is common for separation agreements and support orders to include requirements for support payers to keep life insurance. Life insurance looks after the ongoing needs of the dependents and allows the estate to be distributed as set out in the will.

Here is a continuation of the above example to show why this is important.

Another consideration for parents who have parenting responsibilities for their children, or unmarried parents, is that it is possible for them to appoint a guardian for the children for the first 90 days after their death. This allows a parent with parenting time and decision-making responsibilities to direct with whom the children will live during their parenting time until the court has the opportunity to make a parenting order with respect to the children. Such a provision in a will can be very important if the surviving parent did not have any parenting time or responsibilities, particularly if the court felt that the parent should not have them with respect to the child.

In the separation process, it is not only important to consider your immediate needs and the future needs of yourself and the children but also to make plans to ensure that what happens if you die meets your expectations and protects your family.