We have seen a lot of lesbian and gay couples coming into the office recently getting ready to marry before the Conservatives have a chance to revoke the laws passed by the last government. Since marriage has not been an option in our community for very long, many people may not be aware of some of the basic legal principles that apply to marriage. Marriage is an important legal commitment that brings many consequences. Thus, there is more to planning a wedding than picking flowers and choosing the best place for a reception, although those are very important considerations too.
There are two very important legal consequences of marriage that many people do not consider. First, once you get married then any Last Will and Testament that you have becomes automatically void, regardless of whether you have already named your future wife or husband. It always becomes void and, when you die, you die “intestate”. This means that your assets may not go to where you want because your money will be distributed according to some very inflexible rules set by the government. Do not assume that everything will go to your new wife or husband. Further, dying intestate will significantly increase the costs of administering your estate. This means that less money will go where you want and much more will go to the lawyers. Thus, you need to prepare a new will in close proximity to your marriage. You should see the lawyer before your marriage to plan properly. If you have any net worth then I would not recommend using a “will kit”, even if it has been “approved by lawyers”. It has only been approved by the lawyers selling the kit. Lawyers make far more money in the long run off people who prepare their own wills than if they used a lawyer to prepare the will in the first instance.
Second, if you have a “Cohabitation Agreement” then it will not continue to have any effect after the date of marriage. If you do not want your property to be mixed with the assets of your new spouse or you do not want to pay spousal support (alimony) if you get divorced then you must get a prenuptial agreement (“prenup”). They are not the same documents and a cohabitation agreement will never turn into a prenup, even if it states that it will become a prenup. Some cohabitation agreements state that they will continue to be effective after a marriage, but that only means that they will continue to be effective for the period before marriage. In other words, they do not become retroactively void because of the marriage (like a will). Regardless of what the cohabitation agreement states, it will not cover the period of time during the marriage. A new agreement called a prenup must be signed. Unlike a will, you must have a lawyer prepare a prenup. They are completely invalid unless each party has a lawyer to sign off on the agreement. In other words, you cannot buy a “prenup kit”.
Marriage is an important legal commitment, as well as an important emotional commitment between two people. It means the commingling of assets regardless of ownership, and an obligation to support your new spouse for a period of time that can extend well after the marriage has ended. Everybody should have a will and everybody getting married should consider a prenup, especially if one person has more assets or income than the other, or you are rushing into marriage because you are afraid the door will close.
Darryl A. Aarbo
If you wish to send in a letter, please email it to firstname.lastname@example.org. Darryl A. Aarbo can be directly reached at Courtney Sebree Aarbo, Barristers & Solicitors, 1138 Kensington Road NW, Calgary, Alberta, T2N 3P3. Visit their website at http://www.csalaw.ca. Phone (403) 571-5133. Fax: (403) 571-5134
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