Divorce or separation can complicate both Estate planning and administration matters. This article addresses the legal entitlements that former spouses and common-law partners may have to your Estate assets, and the steps that you can take to create a prudent Estate plan post-separation.
My clients often wonder whether their former spouse or common-law partner will be able to make a successful claim against their Estate when they die. In other cases, an Executor may be unsure whether the deceased’s former spouse or common-law partner is entitled to a share of the Estate.
The following is an overview of the guiding legal principles on the topic of whether a former spouse is entitled to a share of a deceased individual’s Estate in Alberta. Before we jump into it, it’s important to remember that each individual situation is fact-dependent, and you should always obtain the advice of a qualified Wills & Estates lawyer prior to making any Estate planning or Estate administration decisions.
First Things First
If you’re worried about a former spouse or partner making a claim against your Estate, and you haven’t yet formalized your divorce, you should do so as soon as possible. While some people procrastinate formalizing their divorce, it’s wise to be prompt. In Alberta, a divorce may revoke a former spouse’s entitlements to your estate in certain circumstances.
Whether you were legally married and got divorced, or lived common-law and are now separated, it is imperative that both partners sign, upon obtaining independent legal advice, a well-drafted separation agreement. A detailed separation agreement will usually stipulate that neither partner is entitled to the other’s Estate assets.
Updating Your Will
If you already have a separation agreement in place and your divorce has been finalized, it’s important that you also update your Will. Your updated Will should remove any gifts to, or appointments of, a former spouse or partner, and should instead name your intended Executor and beneficiaries. Should you pass away, your updated Will will serve as an important confirmation of your intention to exclude a former spouse or partner.
If you’ve recently separated from a spouse or partner, the knowledgeable lawyers at West Legal can help you negotiate a separation agreement, finalize your divorce, and update your Will.
While the above measures are certainly important, people sometimes pass away before they’re able to finalize their separation agreement, get a divorce, and update their Will. In other cases, a separation occurred many years ago and the former partner can’t be tracked down to negotiate a formal separation agreement. As such, the remainder of this article addresses the Estate entitlements of former spouses and partners in situations where the above-recommended precautions haven’t been taken.
When There Isn’t a Will
Someone who dies without leaving a valid Will, he/she is deemed to have passed away “intestate”. Section 63 of the “Wills and Succession Act, SA 2010, c. W-12.2” (WSA) deems the divorced or separated spouse or partner of an intestate deceased person to have predeceased the deceased, for the purposes of Estate entitlements, in 3 circumstances:
- If the deceased and their spouse or partner lived separate and apart for more than 2 years prior to death, the former spouse or partner is deemed to have predeceased the deceased and is typically not entitled to a share of the deceased’s Estate.
- If the deceased and their former spouse are parties to a declaration of irreconcilability under the Family Law Act, the former spouse generally won’t have a claim against the Estate.
- Where the deceased and their partner are parties to an agreement or order in respect of their property or other marital or family issues which appears to have been intended by one or both of them to separate and finalize their affairs in recognition of their marital breakup, the surviving spouse likely won’t be able to claim Estate assets.
If the above circumstances are inapplicable to the deceased, a surviving spouse or partner can potentially claim maintenance and support pursuant to Section 82 of the WSA. In determining the eligibility of a claimant under Section 82 of the WSA, the Court considers multiple factors, including the nature and duration of the relationship between the surviving spouse or partner and the deceased, the age and health of the surviving partner or spouse, the surviving partner or spouse’s capacity to contribute to their own support, and several other factors named in Section 93 of the WSA.
When There Is a Will
There is a peculiar distinction between testate (someone who dies leaving a Will) and intestate individuals in the WSA when it comes to the Estate entitlements of former spouses and partners. The 3 circumstances where a surviving spouse or partner is not entitled to receive benefit from an intestate deceased’s estate are not blatantly applicable to testate individuals. There is some discussion within the legal profession as to why Section 63 of the WSA is silent on testate individuals.
If someone passes away leaving a bequest in their Will to a former spouse, even if the former spouse isn’t otherwise entitled to Estate assets by virtue of Section 63 of the WSA, they can make a claim for maintenance and support pursuant to Section 82 of the WSA, as discussed above.
If the deceased left a Will naming someone other than their former spouse or partner as a beneficiary of their Estate, the success of the surviving spouse or surviving partner’s claim for maintenance and support may be influenced by whether there was a formalized divorce and/or a properly executed separation agreement in place, as well as by the factors outlined in Section 93 of the WSA.
Matrimonial Property Claims in Alberta
Finally, it’s important to keep in mind that, in addition to the potential claims that a surviving spouse or partner may have under the WSA, a surviving spouse can also bring a matrimonial property claim under the Matrimonial Property Act if a final settlement regarding matrimonial property wasn’t reached prior to the death of their former spouse. Additionally, while an Adult Interdependent Partner, such as a “common-law spouse” does not have standing to bring a matrimonial property claim under the Matrimonial Property Act, they may still receive a share of their former partner’s assets based on the principles set down in several leading decisions by the Supreme Court of Canada.
Do You Have Questions About Potential Claims Against Your Estate?
While we hope that the above is helpful, we understand that the law in this area is complex and that there isn’t always a clear-cut answer regarding the Estate entitlements of a surviving spouse or partner that can be applied to every situation. We recommend that you consult with an experienced Wills & Estates lawyer who can provide you with accurate legal advice based on the specific details of your circumstances. The Wills & Estates lawyers at West Legal are pleased to offer clients a free-of-charge, one-hour consultation to discuss the specifics of their matter in detail.