Amendments to the Succession Law Reform Act (SLRA) state that a marriage no longer revokes a prior will. This update presents new difficulties as a will written prior to marriage may exclude spouses or children expected to be heirs of one’s estate. In these circumstances, the surviving spouse will likely pursue two options. The first option is to pursue an equalization of net family properties under section 5(2) of the Family Law Act (FLA), a process akin to a divorce proceeding. The second option is for the surviving spouse to seek support as a dependent under section 58(1) of the SLRA. However, both options may be contentious. To avoid unwanted disputes, two proactive measures are recommended.
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Draft a domestic contract and a will simultaneously
Drafting a marriage contract in tandem with your estate planning is a prudent strategy to align both spouses’ wishes concerning a hypothetical separation, divorce, or death. This dual preparation ensures the coherence, validity and clarity stated in both legal documents. Engaging in early discussions fosters transparency about assets and future plans, thereby minimizing the likelihood of ambiguities and contentious disputes following a breakdown in the relationship.
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Speak with specialized lawyers to understand your rights and options
Fortunately, Blackburn Lawyers consists of experienced lawyers specializing in various practice areas such as family law and estate planning. Speaking with lawyers in both practice groups ensures that you are cognizant of your rights and options as a spouse.
While a spouse retains the right to elect estate distribution according to their will or under the FLA, claims against the estate may arise if the will fails to adequately provide for a dependent spouse. The rights for common-law partners differ from those of married couples, particularly regarding entitlements to property. In instances where divorce proceedings or specific steps are not taken by the testator, the rights of a separated but not divorced ex-spouse typically supersede those of a common-law partner in inheritance matters.
Drafting a marriage contract in tandem with your will is an initiative-taking approach to safeguarding your interests and streamlining estate matters. For comprehensive guidance on domestic contracts and estate planning, our team at Blackburn Lawyers is readily available to assist.
Disclaimer: This article provides general insights into legal matters and does not constitute legal advice. Consultation with a qualified legal professional is recommended for personalized guidance. Please note that establishing a lawyer-client relationship requires a signed retainer agreement with our firm.
Authored by Adriana Totera
* Please note that the information in this article is not intended as legal advice, but rather as a general overview on the subject. If you are seeking legal advice, please consult with a lawyer.
