April 19, 2016

What Effect Does Marriage Have on a Will and Inheritance?

Alberta law generally affords surviving spouses extra rights as beneficiaries

When a spouse passes away, the pain endured by a surviving spouse or common-law partner can be immense. The last thing on most surviving spouses’ minds is inheritance, but it is nonetheless important for spouses to understand what rights they have as beneficiaries. Alberta’s Wills and Succession Act (WSA) came into force three years ago and significantly strengthens the rights of surviving spouses as beneficiaries.

The WSA grants a surviving spouse who is not a registered owner of the matrimonial home possession of the home for a period of 90 days. This period can be shortened or lengthened upon application to the Court.

The WSA also contains provisions that allow a surviving spouse (in addition to other family members) to make an application for further maintenance and support if adequate provision is not made in the Will.

Divorce and ex-spouses

Changes from the WSA include the effects of divorce or marriage on a preexisting will. An important change under the WSA is that getting married does not revoke the pre-existing will.

Conversely, under the WSA, when certain conditions are met, divorce or separation from a common-law spouse revokes gifts made by the deceased to an ex-spouse if the individual dies without updating their will. It should be noted, however, that the WSA does not remove ex-spouses as beneficiaries from some insurance policies, financial accounts or investments.

These changes underscore the importance of updating your will when significant changes occur in your life, including marriage or divorce.

Dying without a will

An important concern for surviving spouses is when a husband or wife passes away without having a valid will (otherwise called “intestacy”).

Under the WSA, the surviving spouse receives the entire estate if the deceased leaves no descendants or if all surviving descendants are the children of both the deceased and the surviving spouse. If the deceased has descendants who are children from a previous relationship, then the surviving spouse receives either $150,000 or 50% of the estate, whichever amount is greater. The remainder of the estate is divided among the deceased’s descendants (ie: children, grandchildren, and great-grandchildren).

Help with wills and estate issues

Dealing with complicated and sensitive issues raised by an inheritance can be difficult for many people, especially for those who are grieving for the loss of a loved one. As experienced wills and estates lawyers, we can help surviving spouses and other potential beneficiaries understand their rights and thus provide guidance and expert advice during this otherwise difficult time.