How to ensure an ex-spouse doesn't receive a part of your estate

How to ensure an ex-spouse doesn’t receive a part of your estate

“We have been separated for over 25 years and I’d like my present spouse to inherit everything”

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Q: My wife & I have been separated for 25 years. Because she was on a disability pension and also because I owe her half of my company pension, I have been paying her an average of $1,000 a month for several years. She also received the majority of our estate value upon separation and we have all of this in an agreement made up by a paralegal 25 years ago.

Now I wish to ensure that she nor “her” children receive anything from my estate as they, in my mind, have no entitlements. My companion, however, has over the last 20 years assisted me enough that I have not gone bankrupt and I will have a paid-for house and other assets to leave her. How can I ensure that she (my companion) gets my entire estate? She is also disabled.

—John

A: John, you ask if your separated spouse has support claims against your estate. You still provide her with support under your separation agreement. You need legal advice to review your obligations under separation agreements.

Separation agreements can confirm your former spouse has no claims to your estate. That may not have been common practice 25 years ago when you signed your agreement but rules have changed. Having a fresh look at your agreement is required to reassure yourself that this is the case. Hopefully, you can locate your agreement for lawyers to review.

READ: Can you get survivor benefits from an ex-spouse?

You mentioned you now have a companion of 20 years who is disabled. You may owe her support if you die before her. This can be the case even if you are not living together. Laws in many provinces can consider you to have a common law spouse. You must ask your lawyer about your specific legal obligations.

You have options to deal with your support obligations. These can include providing for your current disabled companion with  (1) domestic contracts (2) joint ownership of property (3) designating her as a beneficiary of some assets (4) setting up a trust in your will for her needs.

Each province has different inheritance and support obligation laws for common law spouses. You can consider spousal or special trusts for your companion. This may well depend on her age, your estate value and your other beneficiaries.

Ed Olkovich is a Toronto lawyer and certified specialist in Estate and Trusts Law

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