After Your Spouse Dies: Updating Your Own Will and Estate Plan

In the months after a spouse dies, the focus is rightly on the estate you are dealing with. But your own will, powers of attorney and beneficiary designations were probably written with your spouse at the centre, and they do not update themselves.

This article looks at what happens under BC law to a plan that named a spouse who has died, and the documents a surviving spouse usually needs to review. It complements our general guide on when to update a will.

Your existing will stays in force

A will is not cancelled because your circumstances change. Section 55(2) of the Wills, Estates and Succession Act (WESA) says a will is not revoked by presuming an intention to revoke it because of a change in circumstances. So the will you signed alongside your spouse still governs your estate today, including any parts that no longer make sense. Our article on when to update a will covers life events generally; this one focuses on the gaps a spouse's death tends to leave.

What happens to a gift to a spouse who died first

Many couples leave everything to each other. Section 46 of WESA deals with a gift that cannot take effect, including because the beneficiary died before the will-maker. Unless the will shows a contrary intention, the property goes in this order:

• First, to an alternate. The alternative beneficiary named in the will for that gift, if there is one.
• Next, to descendants, in some cases. If the beneficiary was a sibling or a descendant of the will-maker, to that beneficiary's descendants. A spouse is neither, so this step does not usually apply to a gift to a spouse.
• Then, to the other residuary beneficiaries. To the surviving residuary beneficiaries named in the will, in proportion to their shares.

If your will names alternates, such as your children, the gift may still land where you intended. If it names only your spouse, or the alternates were written for circumstances that have changed, part of your estate may not pass the way you would want. A new will lets you decide directly rather than relying on these fallback rules.

Who will act as your executor?

If your spouse was your executor, check whether the will names an alternate and whether that person is still the right choice. If no one named in the will can act, someone will have to apply to the court for authority to administer your estate, which adds a step for your family. Our article on choosing an executor looks at who to consider and how many to name.

Your power of attorney and representation agreement

Spouses often name each other as attorney under an enduring power of attorney. Under section 29 of the Power of Attorney Act, an attorney's authority ends if the attorney dies. If another attorney was also named, section 29(6) allows the remaining attorneys to continue unless the document says otherwise, and section 18 allows an enduring power of attorney to name an alternate who steps in if the attorney dies. If your spouse was the only attorney, no one now has authority to manage your finances under that document if you lose capacity.

The same review applies to a representation agreement for health and personal care decisions. Our article on powers of attorney and representation agreements explains how the two documents fit together.

Beneficiary designations, title and tax

• Registered plans and insurance. RRSPs, RRIFs, TFSAs, pensions and life insurance pass under their own designations, outside your will. If your spouse was the named beneficiary or successor holder, a new designation is usually needed. See our article on RRSP and RRIF beneficiaries.
• The family home. If you owned the home as joint tenants, it generally passes to you as survivor, but the title has to be updated at the land title office. Our article on transferring the house after a joint owner dies walks through the steps. Once the home is in your sole name, your will governs it.
• Tax. Tax rules often let assets pass between spouses on death with tax deferred. When you leave assets to children or others, that generally is not available in the same way, so the tax your estate owes, and which assets will fund it, deserve a fresh look with your accountant.

A sensible order of steps

There is no need to make major decisions in the first weeks. A practical sequence for many surviving spouses is:

• Gather your documents. Your will, enduring power of attorney, representation agreement, beneficiary designations and the title to your home.
• Deal with the urgent gaps. If your spouse was your only attorney, a new enduring power of attorney is often the first priority.
• Make a new will. Decide on beneficiaries, alternates and an executor who fit your situation now, including any blended family considerations.
• Update designations and title. Make sure the paperwork outside your will matches the plan inside it.

Ready to rebuild your plan around your situation now?

Our wills and estate planning lawyers can review your existing will and powers of attorney, explain where the gaps are after your spouse's death, and prepare an updated will, enduring power of attorney and representation agreement.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.