Does Marriage or Divorce Change a Will in Manitoba?

You may have married, separated or divorced since you or a family member signed a will. The question is whether that will still does what it says, and whether a former spouse could still inherit.

Manitoba's Wills Act answers both questions, but the answers have exceptions. This article explains the general rules so you know what to check and when to ask a lawyer.

This article covers the law of Manitoba.

Does marriage revoke a will?

Under The Wills Act, a will is revoked by the testator's marriage unless an exception applies. One exception is a will that contains a declaration that it is made in contemplation of the marriage.

The Act also saves a will made in contemplation of the testator's common-law relationship with the person later married. It saves a will that exercises a power of appointment over certain property that would not otherwise pass to the heir, executor, administrator or those entitled on intestacy.

Whether a particular will fits one of these exceptions depends on its wording and the facts, so it is worth having a lawyer read it.

Does divorce cancel a will or a gift to a former spouse?

Divorce does not cancel the whole will, but it does affect gifts to the former spouse. After a divorce, an annulment, or the end of a common-law relationship, gifts and appointments to the former partner are revoked, and the will is read as if that person died first. This does not happen if a contrary intention appears in the will.

For a common-law relationship, the end can be a registered dissolution or three years living separate and apart.

Gifts to other people, such as children, stay in place. The gift that would have gone to the former partner is dealt with as if that person had died first, and what happens to it then depends on what the will says.

What if you are only separated?

A will is revoked only by the methods in the Act: a later valid will, a later writing declaring an intent to revoke made in will form, or burning, tearing or otherwise destroying it with intent to revoke. A change in circumstances alone does not revoke a will.

So separating, without more, does not by itself cancel a will. If you are separated and your will names your spouse, it is worth reviewing the will with a lawyer rather than assuming it has been changed.

Separation also matters when there is no will. A surviving spouse is treated as having died first if the spouses were living separate and apart at death and a divorce or Family Property Act application was made, or they divided their property to finalize the breakdown. A surviving spouse who gets no intestate share may still apply for an accounting and equalization under the Family Property Act if property matters were not already settled.

If there is no valid will

If there is no valid will, The Intestate Succession Act decides who inherits. A surviving spouse or common-law partner takes the entire estate if there are no children or other descendants. The same is true if all of the deceased's descendants are also descendants of the survivor.

If some descendants are not also the survivor's, the survivor takes the greater of $50,000 or one-half of the estate, plus one-half of any remainder. The rest goes to the descendants.

A common-law partner has the same share as a spouse. For the Act, a common-law partner is someone who registered the relationship, or who lived with the deceased in a conjugal relationship for at least three years, or at least one year if they are together the parents of a child.

What to do next

• Find the most recent will and note its date and any wording about marriage.
• Collect marriage, divorce or separation papers and any separation or property agreements.
• Note whether any gift or appointment names a former spouse or partner.
• Ask a Manitoba lawyer to confirm whether the will is still effective and how it applies.

If you are dealing with an estate after a death, the same documents help the personal representative and your lawyer work out who is entitled to what.

Frequently asked questions