It is estimated that nearly 40% of marriages end in divorce throughout Canada. In addition, “More than one in four Canadians aged 35 to 64 who were in a couple relationship in 2017 were in their second or subsequent marriage or common-law relationship.” But what happens in these second marriages when previous estate plans were never updated to reflect the new partnership? If you have recently lost a loved one as a second spouse and found that he or she never updated the will, here’s what you need to know.
Rights of Second Spouses in Estate Litigation
Imagine this: You and your husband got married later in life after you both had already been married once before. Your husband had a child from his first marriage, while you did not. Together, the two of you did not have children, but you did treat his child like your own.
But he has since passed away, and you find that his will splits his property between his first wife and child. You, of course, have no qualms with his child having a fair portion of the estate–especially because she helped you care for him as his health failed.
But why would his ex-wife still be listed as a beneficiary? And what rights do you have?
Unfortunately, this scenario does happen. While the child from the previous marriage has rights, the ex wife likely does not have the same entitlements as they did during the marriage.
But as the second spouse, you do have some rights, even if the will states otherwise.
In order to determine your right to vary the will as the second spouse, the courts will review:
- How long the second marriage lasted
- How/when assets of the estate were acquired and who made contributions to it
- How family assets would be divided upon marriage breakdown;
- Obligations to the children from the first marriage;
- Financial circumstances of the spouse;
- The size of the estate; and
- The value of assets passing to the spouse outside of the will via right of survivorship or by transfer of assets during the will-maker’s lifetime.
Because of the intricacies of the Wills, Estates and Succession Act (WESA), so long as the second spouse has either been married to the deceased or has been cohabitating, thus fulfilling the “spousal” duties under the Act, then he or she can contest the will, even if the first spouse from a previous marriage is listed as the beneficiary.
However, this is not an automatic process, which is why it is imperative to utilize the legal guidance of a British Columbia wills variation lawyer.
Obviously, the best plan of action is to revise estate plans before it’s too late – but if that doesn’t happen and you need to vary a will, Klein Lawyers is here to help.
Many couples find each other later in life after already being married once before. Unfortunately, estate plans don’t often represent these new loves, making the wills variation process complex, especially if the previous partner is still living.
That doesn’t mean you have no right – it just means you need Klein Lawyers.
Contact Klein Lawyers at (604) 874-7171 today for a FREE, confidential case evaluation. Our estate litigation lawyers serve clients throughout British Columbia from offices in Vancouver, Abbotsford, Burnaby, Coquitlam, Langley, and Surrey.