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Friday May 4, 2018

“Something Old, Something New, Something Borrowed, Something Blue” and Updating Your Will?

Authored by: Andrew P. Nicol Posted in: Family Law Wills & Estates
Marriage and your Estate Plan

Planning a wedding is an exciting and busy time. With all of the focus on details like finding a venue, caterer, flowers, and music, many people forget about one of the most important details, updating your estate plan and Will.

When you get married, your Will is automatically revoked under the Wills Act of Nova Scotia (with two exceptions discussed below).  The rationale behind this automatic revocation is the assumption that a married spouse would have provided for the surviving spouse from his or her estate after death, and any Will made prior to marriage would not provide for the spouse. Therefore, the Wills Act automatically revokes any Will made prior to marriage, unless the revocation is deliberately planned to be avoided or prevented.

Avoiding Automatic Revocation by Marriage

The first exception to the general rule of revocation occurs when a person includes a declaration that the Will is made in contemplation of marriage. This happens when the testator knows that he or she will be getting married in the near future and wants to ensure that the Will won’t be revoked.

A Will made in contemplation of marriage will not be revoked upon marriage. The rationale is that if this wording is included in a person’s Will, the testator (the deceased spouse) contemplated his or her marriage and set out his or her wishes accordingly (regardless of whether or not any actual provision was made for the testator’s spouse).

If you are in the process of getting married, you should review your current estate plan and Will to see if this needs to be addressed. Contact an estate lawyer for advice on how to best address this.

Preventing the Application of Automatic Revocation by Marriage

Under the second exception, the surviving spouse elects to receive his or her share under the Will that would otherwise be revoked by the marriage. The surviving spouse can determine if he or she will be provided for under the Will of the testator, and if the surviving spouse accepts the provision under the Will, then the Will is not revoked despite the fact that it was made prior to the marriage.

An example of when this might occur would be if two individuals are in a common-law relationship and have provided for each other in their Wills. However, after they create their Wills as a common-law couple, they get married but do not update their Wills. When one of the married spouses dies, the Will would be automatically revoked but for this exception.

For the surviving married spouse to exercise this election, there are certain documents that have to be filed with the probate court within a one year period after the testator’s death. If your spouse passed away and this may be applicable to you, contact an estate lawyer to discuss how this may affect you.

While your estate plan and Will is probably not top of your mind when you are getting married, consider adding it to your wedding “to-do” list prior to tying the knot. This will ensure that your wishes are ready to be carried out.

If you are interested in learning more about marriage contracts and cohabitation agreements, we also have a skilled team of family lawyers who would be happy to help.

 

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