Updating your will and beneficiaries after separation, do this first

Most people don't update their will when they separate. Some don't have a will at all. Some assume the separation agreement covers their estate. None of these assumptions are safe. Nobody wants to think about dying in the middle of a separation, and it can feel like one more task on an impossible list. It is also one of the few tasks that can be done in an afternoon and that protects your children directly.

What separation does to your will

The rules depend on where you live, and they change more often than people expect.

Canada

Ontario. Since January 1, 2022, the Succession Law Reform Act treats a separated spouse as if they had died before you, for the purposes of your will and intestacy, but only once certain conditions are met before your death: you have lived separate and apart for at least three years because the marriage broke down, or you have a separation agreement, a court order or a family arbitration award settling your rights. Gifts to them and their appointment as your estate trustee are then revoked. If you have just separated and none of those apply yet, your existing will still stands, and so does your spouse's right to inherit if you have no will.

British Columbia. Under the Wills, Estates and Succession Act, gifts to a spouse in your will are revoked once you have lived separate and apart for at least two years with at least one of you intending to separate permanently, or once an event happens that triggers property division under the Family Law Act, such as a separation agreement or court order dividing property.

Elsewhere in Canada. Most provinces revoke gifts to a former spouse on divorce, and some extend this to separation in limited cases. In Quebec, beneficiary designations work differently: for most registered accounts other than insurance products, they are made in the will. Ask an estate lawyer or notary in your province how the rules apply to you.

United States

Many states automatically revoke provisions for a spouse in a will once the divorce is final, and some extend that to life insurance and other beneficiary designations. Separation alone usually does not. Employer plans governed by the federal ERISA law, which includes most 401(k)s and workplace life insurance, generally pay whoever is named on the form regardless of state revocation rules; the US Supreme Court confirmed this in Egelhoff v. Egelhoff (2001). Be aware, too, that in many states filing for divorce triggers automatic orders that stop both spouses from changing insurance beneficiaries until the case ends. Check before you change anything.

The safe assumption everywhere is the same: if you want your ex out of your estate plan, change the documents yourself rather than relying on a statute.

The will is only part of it

Your will governs what happens to assets that pass through your estate. But a significant amount of money doesn't pass through your estate at all. It goes directly to whoever is named as beneficiary on specific accounts, and your will generally cannot override that designation.

Update beneficiary designations separately, directly with each institution:

• Life insurance policies. Individual and group. Your named beneficiary will usually receive the payout regardless of what your will or separation agreement says. If your agreement requires you to keep insurance to secure support, follow it; our guide to life insurance as security for support explains how.
• RRSPs and RRIFs (Canada) or 401(k)s and IRAs (US). Change the beneficiary with the plan provider directly.
• TFSAs. A TFSA can have a successor holder, who can only be a spouse or common-law partner, or a beneficiary. If your ex is named as either, change it.
• Group benefits through your employer. Life insurance or accidental death coverage through work. Contact HR or your benefits administrator.
• Pension plans. Contact the plan administrator. Many plans give a spouse survivor rights that are affected by separation in specific ways; ask what yours says. See our guide to pensions at separation.

Each needs its own form. Completing one does not update the others, so keep a list and work through it.

Power of attorney

If your former spouse is named as your attorney for property or for personal care (often called a health care proxy or medical power of attorney in the US), revoke that document. If you became incapacitated before revoking it, your estranged spouse could have legal authority to make financial or medical decisions for you.

In Ontario, a continuing power of attorney for property is revoked in writing, and the revocation must be signed and witnessed in the same way as the original. Give a copy to the person you are removing and to any bank or institution that holds the old document, and sign new powers of attorney naming someone else. In the US the process varies by state, but it generally means signing a written revocation and notifying anyone who has a copy of the original.

Children as beneficiaries

Minors cannot receive large sums directly. If you name a child as beneficiary on a policy or registered account with no trustee in place, the money may be paid into court or held by a provincial official in Canada, or managed by a court-appointed guardian in the US, until the child reaches the age of majority, at which point they receive it outright.

Most parents prefer a trust: name a trustee in your will, or a trustee for the designation itself where the institution allows, to hold the money for your children until an age you choose. Think carefully about who that trustee is. If you do nothing, the other parent may end up managing the money as the children's guardian, which may or may not be what you want.

What the separation agreement does and doesn't cover

Your separation agreement may include terms about death: releasing each other's claims against your estates, or requiring life insurance to secure support. That is good drafting. But those terms don't change the beneficiary on a form. If your agreement says the RRSP goes to the children and the form still names your ex, the institution will pay your ex, and your estate may end up in court trying to get it back.

The agreement is the instruction. Someone still has to carry it out. After you sign, work through our after-signing checklist so that your documents match what you agreed.

One more caution: even with a new will, people you were supporting, which can include a separated spouse, may be able to make a claim against your estate for support under provincial or state law. An estate lawyer can explain how that affects your plan.

What to do this week

1. Find your current documents. Your will, powers of attorney and the most recent statement for every insurance policy, retirement account and pension.
2. List every named beneficiary. Most institutions will tell you who is on file if you ask.
3. Check for restrictions. Before changing designations, check your separation agreement, any court order and, in the US, any automatic orders that came with the divorce filing.
4. Revoke and replace your powers of attorney. This is usually the quickest change and often the most urgent.
5. Book an estate lawyer or notary for a new will. The FairWell professional directory lists lawyers who work with separating clients.

When to see an estate lawyer

If your estate is simple, with no business interests, no blended family and straightforward beneficiaries, an online will service or a notary may be enough at modest cost. If you have children from more than one relationship, own a business, have significant assets, or are in the middle of a contested separation, see an estate lawyer. The cost of a properly structured will is small next to the problems a poorly structured one can cause. Our estate planning after separation page walks through the documents in more detail.

Common questions

Can I change my will while we are separated but not divorced?

Yes. You can make a new will at any time. What you can leave, and to whom, may still be affected by your spouse's property and support rights, so get advice if your estate is significant.

Does divorce automatically remove my ex from my life insurance?

Do not rely on it. Some US states revoke designations on divorce, but workplace plans covered by ERISA generally pay the named beneficiary, and in Canada you should assume the form controls. Change the designation yourself once you are allowed to.

Can I remove my ex as beneficiary before our agreement is signed?

Often yes, but check first. In many US states, automatic orders issued when a divorce is filed prohibit changing insurance beneficiaries, and in Canada a court order or interim agreement may restrict changes. If your agreement will require insurance to secure support, you may need to keep or restore your ex as beneficiary.

What happens if I die without a will while separated?

It depends on where you live. In Ontario, a separated spouse loses their intestacy rights only once the separation conditions in the Succession Law Reform Act are met. In many other places, a separated spouse who is not yet divorced may still inherit. Making a will is the only way to be sure.

This guide is legal information, not legal advice, and it is written for a general audience across Canada and the United States. Family law is provincial and state-based and changes over time. Before you rely on anything here for your own situation, confirm it with a qualified family lawyer in your province or state. FairWell can connect you with one through the professional directory.