The Will Isn’t Changed After a Divorce: is the Ex-Spouse Still Entitled to the Estate?

When a married couple gets a divorce, the spouses sometimes forget to change their will to reflect this major life change – to remove the ex-spouse from their will. If a person divorces and doesn’t update their will, their ex-spouse might still receive the gifts mentioned in the old will. The rightful inheritors of this estate must seek legal remedy to correct the outdated will after the testator’s death.

Revocation of an Ex-Spouses Entitlement in the Will

According to BC’s Wills, Estates and Succession Act (WESA), a will is only revoked under specific circumstances. The testator revokes a will with the specific intention to do so. Neither marriage nor divorce can revoke a will, but this doesn’t guarantee the divorced spouse will receive the gifts from the outdated will. Further, the WESA states that: if a will-maker,

1. Makes a gift to a person who was their spouse,
2. Appoints as executor or trustee a person who was their spouse, or
3. Confers a general or special power of appointment on a person who was their spouse, then

the will-writer most likely intended to revoke the gift, appointment, or power of appointment. The estate must distribute the gift as if the spouse predeceased the will-writer.

This means that ex-spouses will lose their right to anything under their ex-spouse’s will if they have separated. The courts will modify the will to distribute the estate assets as the will-writer intended, even if the will wasn’t updated. The WESA provision describes this as treating the ex-spouse as if they predeceased the will-writer.

If the will revokes a spouse’s gifts, those gifts go to the people already named in the will. The courts will try to adjust the distribution to reflect what the will-writer had intended, minus the entitlement to the ex-spouse. The courts appoint a new executor if the will named the ex-spouse as the executor.

What Counts as an Ex-Spouse?

In BC, there are two ways that people can be ruled spouses, when two people are legally married and when two people “[live] with each other in a marriage-like relationship for at least 2 years.” As outlined in the WESA, two people are no longer considered spouses if:

1. In the case of a marriage, an event occurs that causes an interest in family property to arise, or
2. In the case of a marriage-like relationship, one or both persons terminate the relationship.

For the purposes of WESA, a married couple are no longer considered spouses when they have begun the divorce process. In the case of a common-law marriage, when one person terminates the relationship, they are no longer considered spouses. In either of these scenarios, the above procedures will be followed if the will-writer does not update their will to reflect the separation with their spouse.

Sometimes, people separate from their spouses, but still want to give the ex-spouse part of their estate. In this case, the testator needs to be careful to specifically state in his/her will that he/she would still like their ex-spouse to be included in the will and to receive gifts. Without this provision, the spouse will not receive any gifts even if it’s in the will.

While this WESA provision exists, it’s always best to avoid this by updating your will in the first place. If you’ve recently gone through a divorce, contact an experienced estate lawyer today to begin fixing your will to accurately reflect what you want done with your estate when you pass away.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.