Separated but not yet divorced legal spouses should beware of the potential legal effect of a pre existing will which leaves the spouse’s estate to his now estranged wife.

In the recent case of Macarchuk v. Macarchuk the spouses were separated but not divorced. Prior to separation, the husband had made a will naming his wife as his executor and sole beneficiary of his estate.

The couple settled the separation issues by entering into a separation agreement which contained a provision whereby the spouses both released any rights they may acquire under the laws of any jurisdiction to the estate of the other.

After executing the separation agreement, the husband died prior to the parties’ divorce.

Litigation ensued over the issue of whether the surviving wife was entitled to receive the estate pursuant to the Will and to act as the deceased husband’s estate trustee.

The trial Judge determined that the provision in the separation agreement that released rights acquired under law to the spouse’s estates did not apply to those rights acquired under the husband’s Will and found that the wife was entitled to the benefits provided to her under the Will.

The trial decision is significant in that the wife not only received her entitlement to equalization of property pursuant to the separation agreement, but also received the net residue of the estate, as provided by the deceased husband’s Will.

What could have been done to prevent this unfortunately legal result?

The pre existing Will could have been cancelled, either by the making of a new Will, a written Declaration of Intent to Revoke the Will or the destruction of the Will.

A remarriage would also have rendered the pre existing Will null and void.

Careful drafting of the release against spouses’ estates in the separation agreement is also recommended.