Effect of Divorce on a Will

Last week, I wrote in a post here about the effect of marriage on a will. What about divorce?

In British Columbia, s. 16, of the Wills Act, RSBC 1996, c. 489 says that if you make a gift in your will to your spouse, and you and your spouse later divorce, the gift to your spouse is revoked. On your death your will takes effect as if your spouse died before you. However, this rule does not apply if it is apparent from your will that you intend for your spouse to take the gift even after a divorce.

For example, let's say Susan makes a will in 1990, in which she leaves everything to her husband Bill if he survives her. Her will provides that if Bill dies first, her estate will go to her son Ralph. Susan and Bill divorce in 2000. Susan does not change her will, or remarry. She dies in 2003. Bill and Ralph survive her. The estate will go to her son Ralph.

However, if Susan decided she still wanted to leave her estate to Bill despite their divorce—and yes that sometimes really does happen-- she could make a will that says that her estate will go to Bill even if she dies after their divorce.

Section 16 also applies if you appoint your spouse as executor, and you later divorce. Unless your will indicates a contrary intention, the divorce revokes the appointment of your former spouse as executor.

However, section 16 of the Wills Act only applies if there is a divorce, a judicial separation, or the marriage is found void or declared a nullity by the court. It does not apply if a married couple merely separates, or signs a separation agreement.

Furthermore, section 16 of the Wills Act only applies to a gift made in a will. If you designate your spouse as the beneficiary of your life insurance in a life insurance contract, or as a benificiary in your pension plan or Registered Retirement Savings plan, and you and your spouse later divorce, the divorce does not revoke any of these designations. (But, see a my post "Life Insurance Policy Beneficiary Designations Are Not Sacrosanct," here, about a case in which the court held that the terms of a separation agreement prevented a former spouse from keeping the proceeds of a life insurance policy.)

If you are getting divorced, it is important that you review your life insurance, RRSP and pension plan designations, as well as your will, in light of your new circumstances and wishes.