What happens to a Will after separation or divorce
In both Alberta and Saskatchewan, separation doesn’t do anything particular to your Will, but divorce is another story.
In Alberta, we look for guidance from the Wills and Succession Act, and in Saskatchewan, we look for guidance from the Wills Act.
If you get divorced, any provisions in your will that benefit your former spouse are automatically revoked. This means that your ex-spouse will no longer inherit anything from your estate as outlined in your will. However, any other provisions regarding your children or other beneficiaries remain intact unless specifically altered.
What estate planning considerations should there be with respect to the children after separation or divorce?
First, there should be consideration regarding who you want to nominate as the guardian for your children in your Will. You may have named someone in your Will who is a relative of your former spouse. Consideration should have had as to whether those nominated are still appropriate.
I usually encourage parents to come up with the same person or people that they want to nominate as the guardian of their children on the death of them both because then it gives peace of mind that if both parents are deceased the children are going to the guardians that both parents contemplated.
Second, If you are leaving assets to your minor children, there will have to be a trustee set up to manage those assets.
What about beneficiary designations – do those have to be updated after separation or divorce?
Yes, definitely. Unlike your Will, the beneficiary designations on things like insurance policies, retirement assets, and RESPs will not be revoked by separation or divorce. So, it’s best to update those as soon as the separation agreement has been signed.
If you are changing your beneficiaries to your children, you will have to nominate a trustee of the funds while they are still minors or until a set age.
What about documents setting out medical and financial decision-makers. What is the impact of divorce on those documents?
For appointing an agent for health care decisions if you become incapacitated, in Alberta, we have a document called a Personal Directive and in Saskatchewan we have a Health Care Directive.
For appointing an agent for financial and legal decisions if you become incapacitated, in Alberta and Saskatchewan we have an enduring Power of Attorney.
These agents are not automatically revoked after separation or divorce, and so it’s very important that these estate planning documents are updated as soon as possible because you want to ensure that the person making decisions on your behalf when you’re incapacitated to be someone who you trust, whether that be your former spouse or someone else.