Estate Planning, Separation & Divorce

By Guest Blogger – Dorisa Nachla, B.A., LL.B., Barrister & Solicitor, Notary Public

When you have signed your Separation Agreement, you will no doubt feel like there is a great weight lifted off your shoulders. The last think you want to think about is adding new legal items to your “To Do” list.   You should keep two (2) things in the back of your mind “To Do”, when you are ready (after applying for your CCP Pension Split, that is):

1.         Finalize your Divorce. It takes about 4 to 6 months from the date that you file your Application for Divorce (Simple) to the time you receive your Divorce Order. You can commence an Application for Divorce (Simple), also called an Uncontested Divorce Application because there are no legal issues to be adjudicated by the Court, from 6 months after your separation onward. A Divorce Order and Divorce Certificate will be required if you wish to remarry. The Divorce Certificate replaces your Marriage Certificate, and so the Court requires a copy of your Marriage Certificate and likely will not return it to you.  Additionally, you should consider the finalization of your Divorce as part of your Estate Planning.

2.         Preparing and/or amending your Will and Powers of Attorneys.

Many people do not know this, but in Ontario a Marriage invalidates any pre-existing Will. A Divorce Order does not necessarily cancel out a pre-existing Will. There are a few really good reasons to finalize your Divorce from an estate planning perspective. The biggest reason is that when the time comes to Probate an Estate (the newer terminology is an Application for Appointment of Estate Trustee With a  Will, or an Estate Trustee Without a Will), there are only 4 ticky boxes for the marital status of the deceased: Single, Married, Widowed, Divorced. There is no longer a ticky box for Separated. I have been practicing law long enough to remember when there was a ticky box for Separated and when it suddenly disappeared. My reaction was “So what happens now?!”

If you are Separated but not legally Divorced, your beneficiaries (your children or other relatives that are your next of kin beneficiaries) will have an issue Probating your Estate through the Estates Office at the local Courthouse.  In my experience, the Estates Office at the Courthouse is not well-versed in Family Law. Even if the statute of limitations has long expired for your ex-spouse to make claims on your assets in any way, shape or form (2 years after a Divorce Order or 6 years after Separation), the Estates Office still considers you married if you are not legally Divorced, and the spouse (not ex-spouse in the Estates Office’s eyes) is entitled to a portion of the deceased’s estate. The Estates Office will want to see the Separation Agreement, but even if the Separation Agreement (assuming there is one) clearly states that the spouses waive and release each other from any claims on each other’s estates and will resign from the position of Executor/Estate Trustee if still so appointed in a Will that predates the Separation, the Estates Office will still likely require the ex-spouse to sign a Renunciation of the Estate.  It could pose a real problem for the Estate if the ex-spouse refuses to sign this Renunciation of the Estate. This is a hassle you do NOT want to leave your children or other relatives.  

Do your loved ones a favour and finalize your Divorce and definitely make a new Will after your Separation/Divorce to appoint Executor(s)/Trustee(s) to administer your Estate and manage your estate for your minor children, and name the beneficiaries to your Estate.

Do YOURSELF a favour and prepare new Powers of Attorney (a Power of Attorney for Asset Management and a Power of Attorney for Health Care (sometimes referred to as a Living Will), wherein you appoint people who care about you to manage your finances and make health care decisions on your behalf should you become incapacitated. If you do not make these provisions for yourself, the Public Guardian and Trustee (PGT), an Ontario government agency, will step in and take control of your financial management and healthcare decisions for you and on your behalf, even if you have adult children, siblings or other relatives that are ready, willing and able to do so (because financial institutions and hospitals don’t like getting sued).

For more information, please see related articles and Nachla Law Office’s current Flat Fee schedules with respect Wills and Powers of Attorneys and Uncontested Divorce. Unlike ongoing family law matters, these are a flat fee services at Nachla Law Office.  If we can be of any further assistance with you with respect to your Uncontested Divorce and/or Will/Power of Attorneys, or any other matters in the future, please do not hesitate to contact our office.

Dorisa’s office at 242 Kerr Street, Oakville, Ontario L6K 2B2 and her phone number is 905-290-1965.

Receive Ex's & Oh's! Updates and Five Most Asked Questions

No spam guarantee.

I agree to have my personal information transfered to MailChimp ( more information )

Related Posts

Comments are closed.