Does Divorce Cancel a Former Spouse's Gift in an Alberta Will?

A relative has died. Their will names a husband, wife or adult interdependent partner, but you know the relationship ended years ago. You may be wondering whether that old gift still counts, who now gets the property, and whether the former partner can still run the estate.

This article explains the questions to ask and what the Alberta Wills and Succession Act says happens when a gift cannot take effect. It does not give a single answer for every case, because the result depends on the exact wording of the will and the facts of the relationship.

This article covers the law of Alberta.

Start with the will and the timeline

There is no safe shortcut here. Before anyone assumes a former partner is out of the will, or still in it, you need the actual document and a clear picture of when the relationship ended. How a divorce or the end of an adult interdependent partnership affects a gift or an appointment in a will is a point a lawyer should confirm against the current Act and the wording of the will.

Different people in the same family often read the same will differently. A former partner may believe the gift is theirs. Children may believe it has gone. Neither view is reliable until someone checks the law against the document.

If the gift cannot take effect, who gets the property?

Where a gift fails, the Wills and Succession Act sets an order for what happens next. Where the gift fails because the beneficiary died before the testator, section 32 applies. The same order applies where a gift cannot take effect because it is void, contrary to law or disclaimed.

• First, an alternate beneficiary named in the will, if there is one.
• Next, if there is no alternate and the beneficiary was a descendant of the testator, that beneficiary's descendants who survive the testator.
• Next, the surviving residuary beneficiaries named in the will, in proportion to their interests.
• Last, if none of those people can take, the property is distributed as if the testator had died intestate.

A former spouse or partner is not a descendant of the testator, so the descendant step would not apply to a gift that fails for them. A named alternate takes first, and the Act's order applies only where the will has no alternate. Whether other wording in the will can change the order is worth confirming with a lawyer.

A former partner named as personal representative

A will may also name a former spouse or partner to administer the estate. A personal representative must act honestly and in good faith, in accordance with the will, and must distribute the estate as soon as practicable. Their core tasks are identifying assets and liabilities, administering the estate, satisfying debts, and distributing and accounting for the estate.

Whether a former partner can or should take on that role is a separate question from whether they receive a gift. If a personal representative fails to perform a duty, the Court may order compliance, impose conditions, remove the representative or revoke the grant. A trustee may also apply to the court for directions on any question of fact, law or discretion, and a trustee who follows the directions is discharged from the duty on that matter.

What if there is no will for the property?

If a gift fails and nobody else in the will can take it, the property passes under the intestacy rules in Part 3 of the Act. Those rules speak of a surviving spouse or adult interdependent partner. If there are no descendants, that person takes the entire intestate estate. If there are descendants who are also descendants of that person, the entire estate still goes to the spouse or partner.

If the deceased had descendants who are not also descendants of the surviving spouse or partner, the spouse or partner receives the greater of the prescribed amount or 50% of the net value of the intestate estate, and the rest goes to the descendants. The prescribed amount is $150 000. Whether a former partner counts as a surviving spouse or partner on these facts is something to confirm with a lawyer.

What to do next

• Get a copy of the will and any later documents the deceased signed.
• Write down the dates the relationship began and ended, and keep any divorce or separation paperwork.
• Check whether the will names an alternate beneficiary for the gift.
• List who the residuary beneficiaries are and who the descendants are.
• Ask a lawyer how the Act applies before any property is distributed or anyone is told they are out of the will.

Frequently asked questions