All About Estates

Separation and Divorce: Implications

In Ontario, there are significant implications when a couple (both common-law and married) separates and when a couple divorces. As more and more couples live in common-law relationships as well as the rate of divorce in this day and age, it is important to consider the following implications.

 Separation – Common-Law Partners:

  • Support: For common-law couples, a partner may be able to apply for support if he or she separated from a common-law relationship where the couple had cohabited and had done so either continuously for a period of not less than 3 years, or in a relationship of some permanence and were the natural or adoptive parents of a child. There is no time limit by which a separated partner must make an application for support.
  • Family Property: Common-law partners are not entitled to apply for a division of family property unless they have signed a cohabitation agreement that provides for such division. However, they may be able to pursue a remedy in the form of an award of damages or a constructive trust if they can prove there was unjust enrichment.
  • Powers of Attorney: Separation has no impact on a common-law partner’s power of attorney for property or personal care.
  • Estates: Separation does not affect a common-law partner’s will. However, where there is no will, a common-law partner has no statutory entitlement.

 Separation – Married Couples:

  • Support: There is no time limit by which a separated partner must make an application for support.
  • Family Property: An application for a division of family property must be made within 2 years of the date of divorce, 6 years of the date of separation or 6 months of the date of death, whichever is earliest.
  • Powers of Attorney: Separation has no impact on a spouse’s power of attorney for property or personal care.
  • Estates: Separation does not affect a spouse’s will. Similarly, where there is no will, a separated spouse is entitled to the preferential share of an estate (the first $200,000), and then to a further portion of the residue depending upon how many children the deceased had.

Divorce:

  • Support: There is no time limit by which a spouse must make an application for support.
  • Family Property: An application for a division of family property must be made within 2 years of the date of divorce, 6 years of the date of separation or 6 months of the date of death, whichever is earliest.
  • Powers of Attorney: Divorce has no impact on a spouse’s power of attorney for property or personal care.
  • Estates: Divorce or annulment will revoke any gifts or appointments made to a former spouse (i.e., if a former spouse was named as an estate trustee) and the will takes effect as if the former spouse had predeceased the deceased, unless the will expresses a contrary intention.

 It is wise to review your estate planning documents when there is a change in marital status. After all, it is unlikely you would want a former spouse making personal care decisions for you if you become incapable!

 

About Brittany Sud
Brittany Sud is a member of the Trust, Wills, Estates and Charities Group in Fasken Martineau’s Toronto office. Brittany is developing a broad estates and trusts practice with a focus on planning and administration matters. As part of her practice, Brittany assists high net worth clients, entrepreneurs and professionals with Wills, powers of attorney, domestic contracts and trusts. She has experience developing and implementing cohesive estate plans that reflect the financial objectives and short and long-term goals of clients, including advising on probate planning, family business succession planning, asset protection strategies and disability planning. Brittany’s estate administration practice includes preparing applications for probate and administering the Canadian estates of non-residents. Outside of the office, Brittany enjoys playing softball and tennis, travelling and cooking. She is a dedicated volunteer of the United Jewish Appeal, Jewish National Fund, One Family Fund and Baycrest Foundation. Community Involvement • Host, Baycrest Foundation - Game Night for Baycrest, 2015 • Chair, Pitch for Israel Softball Tournament, 2014-2016 • Vice-Chair, United Jewish Appeal Young Lawyers Leadership Campaign Canvassing Team, 2016 Memberships and Affiliations • Member, Canadian Bar Association • Member, Ontario Bar Association - Trusts and Estates Law Section • Member, Ontario Bar Association - Young Lawyers’ Division • Student Member, Society of Trusts and Estates Practitioners (STEP) Canada

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