Part I: Estate planning between chapters

When separation leaves your story unfinished.

Many couples separate long before they finalize a divorce. Separation is sometimes for months; sometimes for decades. But here’s the legal twist: in Alberta, unless you are divorced (with the actual divorce order from the Court), your "ex" may have rights to inherit from your estate.

The relationship status of "separated, but not yet divorced" can create serious complications, especially when new relationships, children of any age, or other dependents are involved.

The law

Under Alberta’s Wills and Succession Act, a spouse’s right to inherit or act as executor (the "Personal Representative" or "PR") ends when the divorce is final.

Separating - even if living entirely separate lives and not talking to each other for years - doesn’t automatically remove the spouse from your Will. It does not revoke their entitlements under intestacy (i.e. when someone dies without a Will).

That means if you are separated but not yet divorced, your spouse could still:

• Inherit under your Will if the Will hasn’t been updated;

• Inherit under the intestacy law if you die without a Will;

• Have rights to your home and estate as a surviving spouse, potentially excluding a common law partner or other dependents, regardless of the Will.

  
  

When common law adds to the complexity

It is not uncommon for someone who is separated (but not yet divorced) to later form a common law relationship. In Alberta, common law partners are called "adult interdependent partners" ("AIPs"). An AIP partner who meets the criteria under the Adult Interdependent Relationships Act may also have inheritance rights, concurrently, while the marriage to the "former" spouse exists.

That means your “spouses” - e.g. one married, one common law - could each have valid claims to your estate.

"They can deal with it when I'm dead". Why updating your estate plan matters

Estate planning is partly about clarity and care. If you are separated, updating your estate plan ensures that:

• Your former spouse is removed from your Will, Personal Directive and Enduring Power of Attorney (if that’s your wish);

• Your intended people (e.g. children, a new partner, family members, charities, friends, etc.) are properly protected and on track to benefit from what's left in your estate; and

• Your estate won’t be tied up in costly or emotional disputes. (You won't be alive to see the battle of spouses, so why bother put them through that with their lawyers?)

  
  

Also: Simple steps like reviewing your beneficiary designations (for TFSAs, RRSPs, pensions, or life insurance) can prevent further unintended results with former spouses, partners, parents, receiving payouts on your death.

Separate. Review. Update.

Separation is a life transition, and your estate plan should evolve with it to avoid even more headaches.

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This information is intended to be general only. This isn’t legal advice. Reading or responding to it in any shape or form doesn’t create a solicitor-client relationship. Before taking any action involving your personal circumstances, you should consult with a lawyer to ensure it is appropriate to your situation. External links are for your ease of reference only and not endorsements.