Last Will and Testament

Wills and POAs in Divorce

When you get married, one of the first things you do – or should do – is draw up or update your Will to ensure that your spouse is taken care of should anything happen to you. Wills are then typically updated on the birth of children or when other major events occur that impact your assets. Otherwise they tend to be a “set and forget” document. I mean, who wants to think about their eventual demise?

One major life event that does need to be considered, is divorce. Especially, since the legislation in Ontario has recently changed. Currently, a Will is automatically revoked when a person marries. However, as of January 1, 2022 with the passing of Bill 245, this is no longer the case and a pre-existing Will stays valid upon marriage (or re-marriage).

Therefore, if you are divorced and remarry, any prior Will shall be considered valid. So, if you don’t want everything to go to your ex, make sure you update your Will.

On a side note, this Bill also includes a provision that eliminates property rights on death when spouses have been separated for three years or more (but not divorced), regardless of whether or not the deceased had a Will in place. This means that you no longer automatically inherit property on your spouse’s death even though you’re not officially divorced.

Powers of Attorney (POAs) are also important and often overlooked or put off until we get older. POAs are used to assign a person to be responsible for your personal care and property (including finances) should you become incapacitated or unable to manage these for yourself.

We typically think of POAs for when we are older and incapacity or dementia become more of a risk. But incapacity could happen at any time due to an accident or serious illness, so preparing these documents early is a good idea.

When it comes to POAs, we typically entrust a loved one, such as our spouse, to be our decision-maker should we need one. So, what happens if we divorce?

A Power of Attorney stays in place until death. Therefore, if your ex-spouse is your POA, you will want to update these documents upon divorce unless you want them to remain responsible for your care and finances should you become incapacitated.

Whatever your situation, keep these documents in mind if you are going through a separation or divorce to avoid any unintended consequences.

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