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The Intersection of Family Law and Estate Law

Written by Tina Garbas-Tyrrell

Clients are often surprised to learn that decisions they make in a family law context can directly affect their estate planning, and vice versa. Below are a few estate planning considerations to keep in mind if you are getting married, about to separate, or if your spouse has recently passed away:

Marriage Invalidates a Will

In Ontario, marriage invalidates a will unless the will expressly states that it was made "in contemplation of marriage" (meaning that it was drafted soon before the marriage took place with the testator's intention that the will is to survive the marriage).

Clients, specifically those marrying for a second time, must know that existing testamentary bequests left to children and grandchildren can be entirely wiped out if (s)he marries but fails to have a new will drafted.

A Married Spouse Can Elect to Equalize or Take under a Will

If a legally married person makes a will after marriage, and if that will leaves a surviving spouse with less than what (s)he would be entitled to if the parties had separated on the date of death, the surviving spouse can choose equalize the parties' property pursuant to s.5 of the Family Law Act rather than honouring the relevant provisions of the deceased spouse's will. This ensures that a spouse cannot work around the legislation that protects the property rights of married spouses upon separation.

A Married Spouse Can Elect to Equalize or Take Under the Succession Law Reform Act

If a legally married person dies without a will, the surviving spouse can choose to equalize the parties' property pursuant to s. 5 of the Family Law Act or take under Part II of the Succession Law Reform Act, which sets out the legal entitlement that family members have to a deceased intestate person's estate.

Spouses Can Opt Out of Estates Entitlements

Some people, especially those who are moving on to second marriages, want to avoid having any obligation to pay any of their estate to their surviving spouse. This can be accomplished if both parties sign a domestic contract, at any time during the relationship, essentially opting out of the relevant sections of the Family Law Act and Succession Law Reform Act described above.

Domestic Contracts and Court Orders can be Enforced Against an Estate

It is common for marriage contracts, separation agreements, and court orders to have provisions stating that the terms of the agreement/order are enforceable against the estate of either party. For example, if spouses separate with one having an obligation to support the other, and if that person dies not having put sufficient life insurance in place to secure that obligation, the support recipient can make a claim against the deceased's estate for support.

It is very important when estate planning to consider what effect your relationship (or past relationship) may have on your estate. It is beneficial to meet with a lawyer to discuss current or future obligations and available options for meeting those obligations while ensuring that your testamentary wishes can be honoured.

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