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While marriage is one of the most common legal arrangements that people will enter into during their lives, the legal consequences of marriage are not always well understood as they relate to estate planning. Under the previous provisions of the Succession Law Reform Act (SLRA), a marriage would revoke any previous Wills. Put simply, if you had prepared a Will in 2010, and got married in 2015, the 2010 Will would no longer be in effect. This automatic revoking of a Will could have the negative consequence that a person who believed their Will was still valid might discover too late that this was not the case. There were exceptions to this rule: a Will explicitly prepared in contemplation of marriage would not be revoked, and the surviving spouse was given an option to choose to take inheritance under the Will. Nonetheless, there was potential for complications where the deceased and their spouse were not on the same page when it came to their Estate plan.

The new amendments to the SLRA, which came into effect in January of this year, mean that marriage no longer revokes a prior Will. This update presents a new potential difficulty. An old Will written years before marriage may exclude a spouse who expects to be the beneficiary of their deceased spouse’s Estate. If this situation arises under the current law, the best remedy for the surviving spouse would likely be to seek equalization of net family properties under Section 5(2) of the Family Law Act (FLA): this is essentially the same process available to a spouse upon divorce. A surviving spouse may also seek support as a dependent under 58(1) of the SLRA. Either of these options, however, may be contentious.

Note that while these changes to the SLRA potentially benefit or pose difficulties to married spouses, common law spouses are not affected the same way. The SLRA and FLA define “spouse” as either people who are married to each other or people who got married in good faith, but the marriage was voidable or void. Common law spouses do not have the option of seeking equalization, but they could potentially be entitled to support upon their spouse’s death.

To avoid some of these potential problems, there is a benefit to drafting a marriage contract before or after marriage in tandem with the drafting of a new Will. Preparing these documents in tandem ensures that both spouses’ wishes for how to deal with a future separation, divorce, or death are reflected in both the marriage and estate plans.  Negotiating marriage contracts are also valuable opportunities for spouses to have open discussions at the start of their marriage about values, finances and plans for the future in the event of a potential breakdown of the relationship or a spouse dies. It is often a much more amicable process for spouses to have these discussions at the start of a marriage and not in the middle of an acrimonious separation or divorce.

Another benefit of drafting marriage contracts is that they are often binding on spouses’ estates. When drafting a marriage contract, spouses have the opportunity to decide if they want to maintain FLA support obligations, waive spousal support obligations or find a middle ground. Similarly, spouses have to decide if in the event of a relationship breakdown, they want to keep all their property separate, equalize all of their property or carve out certain property for either equalization or protection. These decisions have lasting ramifications as support obligations and decisions about the distribution of assets will need to be upheld by the estate.

Needless to say, preparing new Wills and marriage contracts upon marriage is recommended to avoid these kinds of issues.

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