For Richer or Poorer

Written on December 10, 2012 – 7:00 am | by Corina Weigl

I believe it is fair to say that the percentage of marital relations that break down continues to hover around fifty percent.  Of that statistic it is difficult to determine how many marital relations end in a formal divorce and how many simply end as a result of separation.  It would seem reasonable to assume that the proportion of couples who separate without divorcing is high.  Unfortunately not severing the testamentary benefits provided to one’s spouse, as part of winding up one’s marital relations, can lead to unintended “richer” results for the surviving spouse.

One might assume that a separation agreement which addresses the property rights of the couple would foreclose a surviving spouse from claiming any testamentary benefits provided to him or her in the deceased spouse’s Will.  Unless there is a formal divorce order, making this assumption may lead to clearly unintended consequences.

In Makarchuk v. Makarchuk, 2012 ONCA 42 (Can LII) the Ontario Court of Appeal had to address whether a general release of “all rights which (the surviving spouse) has or may acquire under the laws of any jurisdiction in the estate of the other” resulted in a release of rights acquired under a Will.  Relying upon jurisprudence that concluded that such language is limited to releasing statutory rights, Hennessy J., writing for the Court, determined that such a release did not “trump” the Will.  The Court stated: “Since the deceased never revoked his will, the gift in the will to the respondent stands.”

The upshot – if you are or have separated from your spouse, it is important for you to revise your Will.  Otherwise, you may proverbially be “rolling over in your grave” at the thought of your ex ending up with benefits from your estate.  Stay tuned for a discussion on beneficiary designations in the context of separating spouses.

Corina Weigl

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