After Separation: Update Your Will, Beneficiaries and Power of Attorney

Separating means a long list of decisions, and your will, beneficiary designations and power of attorney are easy to put off. BC law changes some of those documents automatically when you separate, but leaves others untouched.

This guide explains what happens to each one after separation in BC, where the gaps are, and what to update so your former spouse is not left in charge of your affairs or your money by accident.

Separation changes some documents automatically, but not all of them

When a relationship ends, most people focus on parenting, support and dividing property. The estate documents get left for later. That is a risk, because BC law changes some of those documents on its own, leaves others exactly as they were, and ties the timing to a separation date that is not always obvious.

You do not need a divorce for any of this. For a will, a power of attorney and a representation agreement, the key event is separation.

Your will: what section 56 of WESA does

Under section 2 of BC's Wills, Estates and Succession Act (WESA), married spouses stop being spouses for the purposes of the Act when an event occurs that gives each of them an interest in family property under the Family Law Act. Under the Family Law Act, that event is separation. Unmarried spouses stop being spouses when one or both of them end the relationship.

Once that happens, section 56 of WESA revokes, from your existing will:

• gifts to your former spouse, which are then distributed as if your former spouse had died before you;
• their appointment as your executor or trustee; and
• any power of appointment the will gives them.

Section 56 yields to a contrary intention in the will itself, so a will that clearly says a gift to your spouse should survive separation will be read that way. It also does not touch gifts to your former spouse's relatives, such as a stepchild or a former mother-in-law.

Why you still need a new will

Section 56 is a safety net, not a plan. Some common gaps:

• The fallback may not suit you. If the gift to your spouse falls away, it passes as though your spouse had died first. If your will has no sensible alternate for that situation, part of your estate may pass under the intestacy rules instead of to the people you would choose.
• Your executor role may be empty. If your former spouse was your only executor, nobody named in the will is left to act.
• Reconciliation does not undo it. Under section 56(3), the revocation stands even if you later reconcile. Couples who get back together need to sign a new will if they want to benefit each other again.
• The separation date can be disputed. The Family Law Act allows spouses to be separated while still living under the same roof. If the date is unclear, so is the moment your will changed.
• A new partner can become a spouse. Someone who lives with you in a marriage-like relationship for at least two years is your spouse under WESA, and a spouse can bring a claim to vary a will that does not make adequate provision for them.

A new will, signed once you know who you want to benefit and who should act, removes these uncertainties. Our guide on when to update your will in BC covers other life events that call for a review.

Beneficiary designations: the documents separation does not change

RRSPs, RRIFs, TFSAs, pensions and life insurance usually pay a named beneficiary directly, outside your will. Section 56 deals with gifts in a will. A designation you filed with your bank, plan administrator or insurer is a separate document, and separation on its own does not cancel it. If your former spouse is still named on those forms, they may still receive the money.

A few points to check with your lawyer before you change anything:

• Your separation agreement or a court order may require you to keep a designation or a life insurance policy in place, for example to secure support. Changing it in breach of the agreement or order creates a new problem.
• Irrevocable designations. Under WESA, a benefit plan designation can be made irrevocable. While that beneficiary is alive, you cannot change it without their consent.
• The asset itself may be family property. Changing who receives a plan on your death does not change how it is divided between you and your former spouse.
• Designations in a will. A designation made in a will is revoked if that will is revoked, so signing a new will without addressing the plan can leave it with no beneficiary named.

Power of attorney and representation agreement

BC's Power of Attorney Act ends the authority of an attorney who is your spouse when your marriage or marriage-like relationship ends, unless the enduring power of attorney says the authority continues regardless. A marriage or marriage-like relationship ends for this purpose on the date you separate, as the Family Law Act understands separation. Any other attorneys named in the document can carry on unless it says otherwise.

The Representation Agreement Act works the same way for representation agreements, which cover health and personal care decisions. If your spouse is your representative, the agreement ends on separation unless it says otherwise, or unless it names an alternate who is willing and able to act, or another representative it allows to carry on.

These rules do not give you a working replacement. If your former spouse was your only attorney or representative, you may now have nobody with authority to act if you become ill or injured. Sign new documents naming someone you trust. If you prefer to revoke an existing enduring power of attorney rather than rely on the automatic rule, the Act requires written notice to each attorney, and the revocation takes effect when the notice is given or on a later date stated in it. Our article on powers of attorney and representation agreements explains how the two documents differ.

A short post-separation checklist

• Will: sign a new one naming new beneficiaries, executors and alternates.
• Designations: list every RRSP, RRIF, TFSA, pension, group benefit and insurance policy, and check who is named, then confirm what your agreement or order requires.
• Enduring power of attorney and representation agreement: sign new documents and tell your bank and health providers who now has authority.
• Joint accounts and property: review them as part of the property division, not just your estate plan.
• Children: consider who would care for minor children and who should manage any money they inherit.

Our first steps after separating in BC covers the rest of the early decisions.

Separated? Make sure your estate documents match your new situation

Our family lawyers can work through the estate-planning steps that should follow separation, including what your separation agreement requires for designations and insurance, alongside the division of property and support.

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