Marriage revokes a will, but divorce or separation does not
By Kirsten McMahon, Associate Editor
Failing to update a will following separation or divorce can create confusion and may lead to conflict when it comes to the distribution of assets following death, Cornwall wills and estates lawyer Michele Allinotte tells Law Times.
Allinotte, principal of Allinotte Law Office Professional Corporation, tells the legal publication that a marriage revokes a will, but a divorce or separation does not.
“If someone gets married today, the will is revoked. But if you get separated or divorce, the law doesn’t do the same thing,” she says.
Instead, if the will is unchanged and you are legally divorced, it will be read as if the former spouse died first, Allinotte says, adding that this means the assets are distributed to the remaining survivors named in the will. If you are only separated and there is no separation agreement or court order preventing your estranged spouse from making a claim on your estate, the former spouse could inherit under the will.
She tells Law Times says she has seen instances in which a former spouse is purposely left in a will and may even continue to act as executor of the estate. However, she says that contrary intention for the former spouse to be a beneficiary — allowed by the Succession Law Reform Act — must be clearly spelled out in the new will.
“If you are giving something to your former spouse, you need to be pretty clear,” she says.