By James Russell
Whether you are single, married, separated, or divorced—or maybe you have “it’s complicated” selected on your Facebook profile—have you considered the impact your marital status has on your estate planning?
Your marital status has significant impacts when it comes to the law around inheritances. Many couples may assume marriage relationships and common-law relationships are treated much the same when it comes to dividing assets after a spouse passes away. However, when one spouse passes away, depending on the marital status of the couple, the law in Nova Scotia provides drastically different entitlements to the surviving spouse. This can result in confusion, hurt, and conflict, often in the midst of an already difficult time following the loss of a loved one.
Dying Without a Will
If you pass away without a Will, the Nova Scotia’s Intestate Succession Act determines how your estate is distributed. The rules differ significantly for married and common-law spouses.
Married Spouses:
For married spouses, the Intestate Succession Act divides your estate based on the number of children you have:
• If you have no children, your spouse is entitled to inherit your entire estate.
• If you have one child, your spouse is entitled to receive the first $50,000.00 of your estate, or your home, as well as one-half of the remainder of your estate, with your child being entitled to receive the other one-half of your estate.
• If you have multiple children, your spouse is again entitled to receive the first $50,000.00 of your estate, or your home, as well as one-third of the remainder of your estate, with your children being entitled to share the other two-thirds of your estate.
Common-Law Spouses:
A common-law spouse is not recognized as a “spouse” under the Intestate Succession Act unless the relationship has been registered as a domestic partnership. This means, unless the relationship has been registered as a domestic partnership, if you pass away without a Will your common-law spouse is not entitled to receive anything from your estate, regardless of the length of your cohabitation or relationship. Instead, your estate passes to your relatives based on priorities in the Intestate Succession Act.
If your common-law spouse feels they should be entitled to receive something from your estate, often their only recourse is to sue your estate, and there are limited grounds by which a common-law spouse would be successful in suing their spouse’s estate. If you are in a common-law relationship, having a valid Will is an essential part to ensuring your common-law spouse inherits from your estate.
Dying With a Will
Depending on the marital status of your surviving spouse, your spouse may have certain legal rights to challenge your Will. Additionally, if your marital status changes, this can impact your existing Will, even to the extent of invalidating it.
Challenging a Will - Rights of Dependents:
Under Nova Scotia’s Testators’ Family Maintenance Act, certain dependents (spouses and children) can challenge a Will if they feel like they were not adequately provided for in the Will. Similarly, a “spouse” has certain rights under the Matrimonial Property Act, including the right to claim against their spouse’s estate. Again, in the case of a spousal relationship, the rules differ significantly between the rights of married spouses and common-law spouses.
While married spouses can claim against their spouse’s estate if the Will does not provide sufficient support, no legal right exists for common-law ‘spouses’ to make a claim under the Testators’ Family Maintenance Act, or the Matrimonial Property Act, unless, again, the relationship has been registered as a domestic partnership. As above, if your common-law spouse feels that they should be entitled to receive something from your estate, often their only recourse is to sue your estate, where there are limited grounds by which they could be successful.
How Marriage, Divorce, or Separation Affects Your Will:
If you get married after making a Will, the Will is automatically revoked unless the Will specifically notes it was made in contemplation of the marriage, or, after your passing, your surviving spouse elects to have the Will remain valid. This means, unless you make a new Will, or one of the exceptions apply, your estate could be treated as if you passed away without a Will, and the Intestate Succession Act would apply to direct how your assets are to be distributed.
If you get divorced after making a Will, any reference to your former spouse in your Will is voided, unless your contrary intention is clearly documented in a Separation Agreement, Marriage Contract, or the Will. This means any appointment of your former spouse as your Executor or gifts provided to your former spouse are void, while the remainder of the Will stays valid.
If you are separated from your spouse but not legally divorced, your Will remains unaffected. This means your estranged spouse could still act as your Executor and inherit from your estate. If this is not your desire, having a clear Separation Agreement or Marriage Contract, or updating your Will, is essential.
Whether “it’s complicated” or not, one truth remains: having a properly drafted and up-to-date Will is essential to ensuring your wishes are honoured.
This article is for information only and is not intended to be legal advice. If you have any questions or would like further information, you should consult a lawyer.
