If you’ve just gotten married, congratulations! Marriage is a huge life milestone, and it changes many things; your lifestyle, your taxes, and even your will.
In this article, we’ll discuss what happens to your will after marriage, the reason why marriage often revokes a will in Canada, and why it’s important to update your will when life changes happen.
Understanding the Legal Impact of Marriage on Your Will
The law of marriage revoking a will is an old one. You’ll find mention of whether wills are revoked by marriage or not in each provincial legislation about wills, and it’s based on the assumption that marriage significantly changes a person's life circumstances and intentions regarding their estate.
What happens to your will after marriage?
In many cases, your will is revoked when you marry.
This is to encourage you to update your current wishes and estate assets, making sure your spouse is provided for in the event of your death.
Does marriage always void an existing will?
If you stated in your existing will that you were making it while also planning to get married (called a “contemplation of marriage” clause), most provinces will consider your will valid even after you marry.
If you haven’t done this and get married in a province where wills are automatically revoked upon marriage, your will becomes void and should be updated and re-executed.
In which provinces does marriage revoke your will?
Why You Should Update Your Will Post-Marriage
Updating your will after marriage is important for many reasons. First, it ensures your estate plan reflects your new marital status and protects both your assets and beneficiaries.
Here are some common reasons to update your will after you marry:
- Protect your assets: Newly acquired assets, such as a shared house, assets bought together or other investments, should be included in your new will to ensure they are distributed according to your wishes.
- Update your beneficiaries: You may want to add your spouse as a beneficiary or adjust the shares of existing beneficiaries to reflect your new family structure.
- Choosing guardians: If you have children or pets and haven’t already appointed guardians for them, updating your will gives you the power to choose people you trust to take care of them.
- Change your executor: After marrying, you might want to appoint your spouse or another trusted individual as the executor of your will.
- Accommodating blended families: If you or your spouse have children from previous relationships, updating your will can help ensure that all family members are provided for according to your respective wishes.
Get more estate planning tips for newlyweds →
Step-by-Step Guide to Updating Your Will
You can update your will by including a codicil, making an amendment, or creating an entirely new will.
Codicil To A Will
A codicil is a separate will amendment. It doesn't require changing the will itself; instead, it attaches a statement that adds to or amends the will.
Amendment To A Will
It’s possible to make handwritten changes to your will by crossing things out or adding new information. It’s important to follow the requirements very carefully for a handwritten amendment - the changes must be signed by you and the witnesses who originally signed your will, and if you don’t follow those instructions, the changes may not be valid.
Execution Of A New Will
Online will creation can be overwhelming. But with Willful, you can easily update your will online for free and execute a new will, which automatically revokes the previous version. All you have to do is log back in and then click Update your will.
If you made a handwritten will or a will created by a lawyer, you can also remake the will. This isn’t limited to a certain type of will, but Willful makes it easy with free updates!
How to update your will
- Review your old will: Take note of everything you’d like to change and everything you’d like to keep the same
- Decide your method for updating: Codicil, amendment, or revoking and making a new will
- Draft your changes using your method of choice
- Legally execute your changes based on the requirements of your province, which includes signing and witnessing
- Store your new will in a safe place and destroy the old copy
- Inform your executor about the changes and new storage location
Considerations for Blended Families
For more complex family situations, like second marriages with children from previous marriages, people typically want to ensure that if they leave everything to their spouse when they pass away, their spouse will respect their wishes with respect to inheritances for all children.
For that reason, couples with blended families may want to consider the following while creating their wills:
- A spousal trust: This type of trust allows you to pass assets to your spouse for the duration of their life, and upon their death, those assets then go to your children
- Beneficiaries on financial assets: Naming your children as beneficiaries on your life insurance policies and registered savings accounts allows those assets to skip probate and go directly to their recipients upon your passing
Does a Will Override Spousal Rights?
While a will outlines a person's wishes for distributing their estate, and everyone is allowed to exercise their testamentary autonomy and document any wishes they want in their will, national and provincial estate laws (such as Ontario’s Family Law Act) provide certain protections for spouses that may override the contents of a will.
These laws may also extend to protect common law partners, though it depends on the province. Unmarried partners can sometimes have different inheritance rights compared to married spouses, so it’s important to check which applies to your situation and jurisdiction.
Learn how common law compares to marriage for estate planning →
Important aspects of spousal inheritance in Canada
Can I Exclude My Spouse from My Will in Canada?
When a spouse is legally entitled to an inheritance but hasn't been named as a beneficiary in their spouse’s will, they are allowed to claim a portion of their deceased partner's estate in a "spousal election" or "elective share”.
This can also be the case if the spouse’s inheritance, as outlined by the will, is unjust or fails to support their needs.
Under what circumstances can a spouse be successfully excluded from a will?
Because of spousal rights, it can be very difficult to successfully disinherit a spouse in a will. However, there are some ways to do so:
- You and your spouse had a valid prenuptial or postnuptial agreement where they waived their inheritance rights
- You and your spouse were legally separating or divorcing before death
- You created a trust that protects your assets from spousal claims
Can a Will Be Changed Without the Spouse Knowing?
There is no legal requirement to tell your spouse about any changes you make to your will, and you can make will changes anytime after marriage.
However, this doesn’t mean the changes will necessarily be enforceable or free from challenge after death. And especially in the case of guardianship, not informing your spouse of changes that go against their own wishes can lead to more stress, grief, and court challenges should you pass away before they do.
It’s always best to be transparent and keep an open dialogue with your spouse about your final wishes and estate plan. That way, you can work together to make decisions, support each other through the process, and share that amazing sense of accomplishment when your documents are complete.
