Separation from spouse a critical time to update will

Separating from a spouse brings its own set of stresses, but few people realize that not updating a will at this time can open the door to even more headaches, Fredericton family lawyer Jennifer Donovan tells

Donovan, principal of J. Donovan Law Group, frequently advises clients on estate planning needs, and says that re-evaluating a will — or drawing up a new one — should be one of the first things to attend to upon separation.

“It’s a common misconception that because you’ve separated, you don’t need to change your will,” she says. “I often have to tell clients that if you are married, and you die without a will while you are separated, your spouse is still going to inherit. Their typical response is, ‘No way do I want that.’ So, it’s critical to make a will to prevent that.”

Donovan helps the spouse examine personal assets — heirlooms, investments, life insurance, inheritances — to ensure they are bequeathed to a different beneficiary, as well as changing or creating a power of attorney.

“Many people say, ‘I don’t know what my investments or beneficiaries are.’ This process, as I conduct it, allows them to become informed, gain the knowledge, make good decisions and either change their will or make a new one,” she says.

“I convey the legal advice in a way that is easy to understand and simple: which documents to look for or obtain and who to contact at the bank or financial advisors.”

Donovan says in many cases, the separated couple is selling the marital home and they both want to buy individual properties once they are divorced.

“You do the will at the outset, and include the marital home in it,” she says. “After it’s sold, you are going to want to update your will to provide for the new residence.”

As a new year begins, Donovan says many people decide to use that as an opportunity to take a fresh look at their assets, and who will inherit them.

In situations where both spouses have been involved in the financial aspects of the marriage, or have kept their finances separate, she says it’s not cumbersome to make the necessary requests for documentation for review.

“It’s the ‘silver divorces’ — middle-aged or older couples going through it for the first time — that prove to be more difficult,” Donovan says. “For example, one spouse was the income provider, and the other managed the household. If one was completely dependent on the other, it can be a daunting undertaking that causes a great deal of stress and anxiety because they don’t know where to start.”

To make matters more complicated, the Wills Act may be different province to province, so she recommends making sure it’s still a valid document in the event of a move.

Not to put too fine a point on it, Donovan says the prudent course of action is to not take any chances and create a new will upon separating.

“If your old will is valid, it will be respected. If you left everything to your husband or wife, there’s no defence to saying that you didn’t get around to it but meant to change it.”