Significant amendments to estate planning legislation came into effect on January 1, 2022 which affects any person who has separated from their spouse, is living in a common-law relationship or plans to marry in 2022.
Prior legislation relating to wills and distribution of the estates where there was no will had two issues:
- Marriage revoked an existing will and left the individual without a valid will unless the individual made a new Will after marriage.
- A separated but not divorced spouse remained entitled to share in an estate if he/she was named in the will or if there was no will when the other spouse died.
Effective January 1, 2022;
- Marriage occurring on or after January 1, 2022 does not revoke an existing will.
- Spouses who have been separated but not divorced for at least three years before a death that occurs after December 31, 2021 or have a separation agreement, are treated the same as divorced spouses. This means that a separated spouse who is named as an estate trustee or a beneficiary in the other spouse’s will does not continue to be entitled to the benefits under the will. In the event that a separated spouse dies without a will there is no entitlement for the surviving separated spouse to share in the estate.
The change in the law is not retroactive so anyone who was married before January 1, 2022 is still caught under the previous law and therefore does not have a Will unless they made a new one after marriage or before marriage and specifically in contemplation of marriage.
For anyone who becomes married in 2022 and already has a pre-existing will that will remains in effect. If the pre-existing that will does not contain provisions for the person who is now the spouse the spouse will receive nothing under the pre-existing will.
Written by Barrie Hayes