When a couple separates, dealing with support, custody of children and property are important issues to deal with in a separation agreement or court settlement. Due to these pressing concerns, estate planning can often take a back seat.
Some important estate planning issues to consider after separation are:
The fact that a couple separates and/or sign a separation agreement does not revoke a bequest in a will. Therefore, it is important for people who separate to redo their will (and powers of attorney while they are at it). Otherwise, the provisions in the existing will signed at a time when the marriage was rosy continue to be in effect.
In Ontario, the law does not give formal property rights to common law couples. Only married people have those rights under the Family Law Act. However, there are some court recognized remedies (not under the Family Law Act) under very specific circumstances where a spouse has contributed money or assets to a business or property owned by the other spouse. These are fact driven situations which cannot be relied upon for any certainty.
Spouses should consider the appropriate changes to beneficiary designations in their pensions, life insurance policies, RRSPs, investments and etc.
Divorce does not necessarily guarantee that the other spouse will not be able to make a claim under a previous will or under intestacy law (if there is no will, the law gives surviving married spouses certain rights). Ontario law does provide
that unless there is a contrary intention in the will, naming the former spouse as an executor and beneficiary are revoked. However, the safest thing to do is to change your will (and powers of attorney) immediately after separation because it may take some time to get a divorce. Also, many people just rely on a separation agreement and never get around to getting a divorce for a variety of reasons.
Remarriage will revoke your will by law (whether it be the one prepared before or after separation). In my experience, this is often missed by people. The result is that the law decides what will happen to your property (there is a specific distribution which has to be followed) and it is not necessarily what you would have wanted.
January 2012-In summary, it is important to look after the estate planning issues in addition to dealing with the pressing issues of support, custody and property.