I don’t like my husband. Can I leave him out of my will?

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I don’t like my husband. Can I leave him out of my will?

Unfortunately, not all marriages are perfect. For a wide variety of reasons, a person may decide that they do not want to include their spouse in their will. Other times, a person may decided that they only want to leave a small amount to their spouse.

Generally speaking, people have full authority to make whatever gifts they see fit. There are however a few exceptions.

Firstly, for spouses that are married, the Family Law Act sets out a system of the equalization of family property upon the breakdown of a marriage (including death) whereby assets accumulated over the course of a marriage (with some very notable deductions and exclusions).

It is beyond the scope of this article to discuss the ins and outs of equalization. I like to explain it this way. You cannot die your way out of an equalization obligation.

If the person making the will, at the date of their death has accumulated more assets than their spouse according to the very specific formula in the act the estate of the person making the will may owe half of the difference of the accumulation.

A surviving spouse, who does not like the terms of their spouse’s will, may make an “election” whereby they choose to equalize family property rather than accept their entitlement under the will.

This is an issue only where the surviving spouse is not happy with the terms of their deceased spouse’s will.

Another matter to take into count is where a surviving spouse is financially dependent on the deceased spouse. If the will does not provide adequade provision for support of the deceased spouse, upon application of the surviving spouse, a court may order support payments to come out of the estate of the deceased spouse.

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