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Thursday, July 12, 2018

What happens on death when you've been separated from your spouse for eons, but not divorced?

Many of you know people who have been separated from a spouse for years but who have never bothered to go through with the divorce. Sometimes I meet clients who tell me that they have been separated for 25 or 30 years or more without ever finalizing the divorce. When I ask why they have not simply signed the paperwork, I am usually told that "it makes no difference".

Perhaps it does not make a difference to your daily life right now. But does it make a difference when you pass away or if you develop an age-related dementia? Perhaps.

One way in which you or your estate might be affected by this lack of action is the existence of old documents that should have been updated years ago but never were. Let's face it, if you can't even get around to finalizing your divorce, you probably haven't bothered updating your will, Enduring Power of Attorney, or Healthcare Directive either. Are you okay with the ex you left 25 years ago inheriting a part of your estate? Does it suit you to have your ex making end-of-life or medical decisions for you? Do you know how the claims of a still-married spouse might impact a new partner in your life? If not, get going and update your documents.

Another reason that I've heard for not concluding a divorce is that it's "too much trouble". I mean, who wants to go through all of that fuss about dividing pensions and changing the title on the house and all that boring stuff? It will work itself out, right? Wrong. Those issues often continue to exist, but you've left the burden of figuring out your responsibilities on the shoulders of others. A divorce settlement would have covered things such as who would get a share of your company pension, who would keep the house, and who would maintain life insurance policies for the other.

Let's imagine that you meet someone and the two of you decide to become a couple. He or she is still married even though they've been separated for years. It's no big deal so you  move in, assuming that one day it will all get figured out. The years go by and you don't think a lot about the silly details such as whose name is on what. Then one day your partner passes away and suddenly you realize that you have been left out in the cold. Your partner's ex was never taken off the title to the house, even though you and your partner lived there and paid for everything. Now you've been given two weeks to move out so that the ex can take the house and sell it. You also find out that you won't be getting anything from your partner's pension or life insurance because all of that is in the ex's name too!

A lot of people in that position will put up a legal fight, if they can afford to do so, and so begins another lengthy, expensive legal battle that could have been prevented.

Not every situation is as dire as the example I've given here. Some provinces have legislation that allows a common-law spouse to inherit even when living with someone who is legally married to another person. Not all do, though. And even if common-law status will cure some of the issues I've raised in my example, it won't overcome things such as a title held in the name of a third party.

If you have been separated for years and have no intention of reconciling with your ex, just get the paperwork done so that others around you won't have to tidy up your affairs for you after you pass away.

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