Updating Your Will and Beneficiaries After Separation

Most people finish a separation agreement and feel the paperwork is behind them. For a lot of families, one piece is still open, and it is the piece that pays out when someone dies.

British Columbia law does part of this job for you automatically. The part it leaves alone is the part with the money in it.

This page covers what separation changes on its own, what it does not touch, and the order to work through it. It is a separation step rather than an estate planning exercise, and it belongs on the list alongside dividing the pension and updating the title to the house.

What separation changes on its own

Your will does not become invalid when you separate. It stays in force, and specific parts of it fall away.

Under section 56(2) of the Wills, Estates and Succession Act, once you and your spouse have ceased to be spouses, three things in your will are revoked unless the will says otherwise:

• Any gift to your former spouse.
• Their appointment as your executor or trustee.
• Any power of appointment you gave them.

Two other documents follow a similar pattern. Where your enduring power of attorney names your spouse as your attorney, their authority ends when the marriage or marriage-like relationship ends, unless the document expressly says it continues. Representation agreements work the same way.

That sounds like the system taking care of you. It does some of the work, and it creates its own problems.

When you stop being spouses for this purpose

The revocation is triggered by ceasing to be spouses, and that has a specific meaning.

• For married spouses: living separate and apart for at least two years with at least one of you intending it to be permanent, or an event occurring that causes an interest in family property to arise under the Family Law Act.
• For a marriage-like relationship: when one or both of you terminate the relationship.

No separation agreement is required, no court order, and no divorce. That is a relief in some situations and a trap in others, because the date is determined on the facts.

What separation does not touch

This is the part that catches people, and it is the reason this page exists.

A few related points worth checking on the same afternoon:

• Some designations are irrevocable, which means they cannot be changed without the named person's consent.
• Where your separation agreement requires you to keep life insurance in place to secure support, the designation is meant to stay and should match what the agreement says.
• Workplace pensions often have both a beneficiary designation and a survivor benefit, and they are not the same thing.
• A designation made through your will and one made on the plan's own form can conflict, which is a dispute nobody wants their family to inherit.

The hole the automatic revocation can leave

Revoking a gift does not replace it. Where your will left everything to your spouse and named no alternate, that gift falls away and the law decides who takes it instead. The intestacy rules apply to that part of your estate, which may well not be what you would have chosen.

The same applies to your executor. If your spouse was named and no alternate was, you now have a will with no one appointed to carry it out, and someone will have to apply to the court for the authority to act.

There is a third item people forget in the middle of a separation. If your will names a guardian for young children, that appointment deserves a fresh look now that the household has changed.

Jointly owned property and the right of survivorship

Under the Family Law Act, on separation each spouse has a right to an undivided half interest in family property as a tenant in common. That means the family home does not simply pass to the survivor by right of survivorship the way it would have during the relationship.

It is worth dealing with expressly rather than relying on it. The land title register still shows what it showed before, jointly held assets that fall outside family property are not covered, and joint bank accounts have their own rules.

If you want your former spouse to still inherit

This happens more often than people assume, particularly where there are young children, a long relationship, and an amicable ending.

The default runs against you. The gift is revoked on separation whatever you intended, so wanting it is not enough. You need a will that says expressly that the gift is to take effect despite the separation.

BC courts do have a power to give effect to a person's true intentions where the paperwork failed, and it has been used to restore a gift in exactly this situation. Relying on it means your family pays for a court application to prove something you could have written down in an afternoon.

If one of you dies before the agreement is finished

Separation matters do not disappear when someone dies partway through.

• A family property division claim survives the death of a separated spouse, and the personal representative of the person who died can bring it.
• A surviving former spouse does not have standing to bring a wills variation claim against the estate.
• The two-year limitation period on property claims continues to run, and it does not pause because of a death.

If your former spouse has died while your separation was still being worked out, get advice quickly. The picture is more complicated than usual and the clock is unforgiving.

What to review, and in what order

• Every beneficiary designation: RRSPs, RRIFs, TFSAs, workplace pension, and each life insurance policy, including group coverage through work.
• Whether your separation agreement requires any designation to stay in place.
• Your will: the gifts, the executor, the alternates, and the guardian appointment for any young children.
• Your enduring power of attorney and representation agreement, and whether either one says the authority continues through a separation.
• Title to jointly held property, and how the agreement deals with it.
• Joint bank accounts and any assets held jointly that sit outside family property.

The designations are the quickest and they close the biggest gap, which is why they come first. The rest can follow at a reasonable pace.

Where this sits in your separation

Updating your will and your beneficiaries belongs on the same list as dividing the pension, splitting CPP credits, and dealing with the family home. It is the step most often left off, and it is the one with the sharpest consequences when it is.

We raise it with the families we work with as part of reaching a final separation agreement, from our offices in Victoria, Nanaimo, Vancouver, and Surrey, and by video anywhere in the province. Journey, our beacon of hope and care, is part of how we remind families that they are not walking this road alone.