Sam and Jeannie marry and produce one child, Don.
Now an adult, Don rents the farm from his parents with the plan that he will eventually inherit it all.
Sam and Jeannie divorce. Jeannie remarries.
- Are the wills written by Jeannie and Sam automatically made invalid by the divorce? By her remarriage?
- At the same time, everything Jeannie brought into the second marriage are hers to do with what she will. Right?
- What steps can be taken along the way to ensure a fair ending to this story for all the characters?
- Can they live on the family farm until they divorce?
Amber Biemans of Behiel, Will and Biemans in Humboldt, Sask., says it depends of many factors.
Becoming a common-law spouse, which means cohabiting in a spousal relationship continuously for more than two years, or getting married invalidates a will made before that time.
“The unfortunate consequence of this law is that most laypeople do not know of its existence and so someone that has made a will does not realize that their will has become invalid by virtue of the change in their relationship status,” she said.
“A widowed farmer that assumes his or her land will go to their children, pursuant to their will, would not expect that a significant portion would in fact go to a partner that they had been living with for just over two years,” said Biemans.
“The end of a common-law relationship or divorce, on the other hand, does not invalidate a will. If two people divorce and do not remake their wills, their assets could still go to their ex-spouses, provided that their ex-spouses were the beneficiary of the will at the time it was made.
“To put this all into the context of the (hypothetical case), Jeannie’s will is invalid because she remarried. Sam’s will remains valid, unless he too has remarried or become common law with another partner.
“If Sam made a will during the marriage that gave all of his estate to Jeannie and he remained single after their divorce until his death, then Jeannie would still receive the portion of Sam’s estate that he had given her in his will.”
Other stories from After the Farm, The Senior Side edition:Woman stayed with abusive husband for love of a farm
The assets that Jeannie brings into her second marriage may be exempt. If she adds her new spouse’s name onto the assets, land titles or bank accounts, the assets will lose their exempt status. If she brings in a home that she and her new husband live in as their primary family home, then the house will lose its exempt status. If she brings in a vehicle that is used as their family vehicle, then the vehicle will lose its exempt status.
“If a judge thinks an exempt status for an asset would be inequitable for them, it will not be exempt,” she said.
Prenuptial agreements or cohabitation agreements are a great way to protect parties and to ensure an understanding and agreement of how property will be divided in the event of a relationship breakdown.
“Sam should make a will following his divorce to ensure his estate goes to whomever he wishes if it is not Jeannie,” she said.