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Sunday, November 26, 2017

Does the law prevent me from leaving something to an ex-partner when I die?

A reader recently wrote to me to ask about gifts in a will to an ex-partner. Does the law prevent you from leaving something to them when you pass away? Read on to see the question and my response.

"Our Wills Succession Act states that an ex-partner cannot benefit from a will. I want to add a handwritten codicil to my will saying that even if we become ex-partners, I wish him to inherit. Is this possible?"

I've received variations of this question from readers in different parts of Canada so I thought it would be a good idea to discuss it a bit.

Nowhere in Canada does it say that an ex-spouse or ex-partner cannot inherit from you. You've interpreted that incorrectly. What the law does say is that if you die without a will, an ex-spouse or ex-partner has no legal right to insist on a share of your estate under provincial intestacy laws.

The law will allow an ex-spouse to claim against the estate for a division of matrimonial assets if that division process hasn't been completed when you pass away. That's based on the concept that the assets would have been theirs already if you two had finished dividing things up between you. This law varies across the country but is generally available to married spouses only.

If you make a will (or, as you have mentioned, a codicil) you are perfectly entitled to leave something to an ex-spouse or ex-partner if that is what you want to do. You can leave something to them just as  you can to any other friend. The will is the key to carrying out your specific wishes.

Keep in mind that I'm answering this question without any information about who else is in your life or about the size of the estate. There are certain people who must legally be supported by your will to avoid the risk of a challenge on the grounds of dependent's relief. Though your ex is not one of them, you may have minor children or disabled children who would fit this description. If there are only modest assets in the estate, the children (minor or disabled) may attempt to claim the entire estate for their support. In that case, you wouldn't be able to leave anything to your ex.

There are other ways of leaving something to a specific individual, as well. For example, you could name your ex as the beneficiary of a life insurance policy or an RRSP.

As usual, the short answer to your question is "yes, this is possible" but with wills and estates law, the answer can never be that short if it is to be accurate. There are always many factors to take into consideration.

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