Separated but Not Divorced in Alberta? Your Spouse May Still Inherit
Written by: Vlad Foya, Associate Lawyer at SB LLP, in the Wills & Estates department
This article discusses Alberta law as it applies to married spouses who are separated but not yet divorced. It is for general information only and is not legal advice. The appropriate steps will depend on the particular circumstances and documents involved.
Separation is a good time to review your estate plan instead of waiting until the divorce is final. A simple question to ask is, if you died today, would your property go to the people you intend and would the right person be responsible for handling your estate?
The Alberta Court of Appeal recently considered one aspect of this issue in Lalonde v Waddell, 2026 ABCA 296 (“Lalonde”)¹.
In Lalonde, the spouses separated in July 2022. The wife started proceedings for divorce and division of family property a few months later. The husband died without a will in November 2023, less than two years after their separation, while those proceedings remained unresolved.²
On the agreed facts, the Court of Appeal noted that it appeared the wife was entitled to the entire intestate estate. The deceased and the wife had a son together, which was relevant to her entitlement under the intestacy rules, and none of the circumstances in section 63 of Alberta’s Wills and Succession Act (the “WSA”) that would treat her as having predeceased the deceased applied.³
The appeal concerned a procedural order made by the pretrial judge requiring the wife’s action for division of family property to be completed before a separate action brought on behalf of the estate could proceed. That separate estate action sought to recover property that had previously belonged to the deceased and had been transferred to two of the wife’s sons, one of whom was also the deceased’s son. The Court of Appeal set the order aside, but did not decide the merits of those property recovery claims.⁴
What Changes When There Is No Will?
As the Court of Appeal noted in Lalonde, Part 3 of the WSA governs the distribution of an intestate estate. Section 61 of the WSA addresses the entitlement of a surviving spouse and is expressly subject to section 63 of the WSA.⁵
Under section 63 of the WSA, for the purposes of intestate succession, a surviving married spouse is treated as having predeceased the deceased if any of the following circumstances apply:⁶
The spouses had lived separate and apart for more than two years when the death occurred;
They were parties to a declaration of irreconcilability under the Family Law Act; or
They were parties to a property or other marital or family agreement or order appearing intended by one or both to separate and finalize their affairs following the marriage breakdown.
The rule does not apply if the spouses reconciled and remained reconciled at the time of death. These are alternative grounds, so the two-year period does not need to have passed if one of the other grounds applies.⁷
What If There is Already a Will?
Lalonde involved a person who died without a will. Where there is an existing will, a different set of rules applies. The two-year rule in section 63 of the WSA does not determine what happens to gifts or appointments made under a will.
For married spouses, section 25 of the WSA generally treats certain gifts and appointments in favour of a former spouse as being revoked following divorce or where the marriage is found by a court to be void, unless a contrary intention is found when interpreting the will. Separation alone does not trigger that provision.⁸
Separate from the effect of section 25 on the will itself, a spouse who is separated but not divorced when the other spouse dies may also have a potential claim for maintenance and support from the estate under Part 5 of the WSA, depending on the circumstances. A separation agreement or waiver may be relevant to that claim, but does not necessarily prevent the Court from making a maintenance and support order.⁹
It is therefore important to review the will as it is actually written. Consider who is named as a beneficiary and who is appointed to administer the estate, including any alternate appointments. The provisions for children should also be reviewed to make sure they still reflect your intentions.
Can Family Property Claims Continue After Death?
The Court of Appeal in Lalonde also considered what happens to family property proceedings after one spouse dies. The Court held that the Family Property Act did not require the surviving spouse to complete the family property action before proceeding with the separate estate action.¹⁰
The Family Property Act allows a surviving spouse, in certain circumstances, to make or continue an application after the other spouse’s death. It also allows the Court to suspend all or part of the administration of the deceased spouse’s estate until an application for a family property order has been determined.¹¹ The Court of Appeal emphasized that these provisions are permissive and do not necessarily require the family property proceeding to be completed first.
Inheritance rights and family property rights therefore need to be considered separately.
A personal representative should not assume that an apparent entitlement to inherit resolves an outstanding family property claim or that the estate can be distributed immediately.
Any outstanding family property proceedings, applicable court orders and restrictions on distribution should be reviewed before estate funds are released.¹²
What Other Documents Should Be Reviewed?
An estate-planning review following separation should not be limited to the will and should include any separation agreement or court orders, current beneficiary designations, the enduring power of attorney and the personal directive. Where possible, provide your lawyer with the actual documents rather than relying on a summary of what they contain.
Life insurance and registered plan beneficiary designations should be reviewed separately from the will. For life insurance, confirm who is currently designated as beneficiary, whether the designation is revocable or irrevocable and what happens if the beneficiary cannot receive the proceeds. Alberta’s Insurance Act contains separate rules governing beneficiary designations, including irrevocable designations and designations made by will.¹³
Beneficiary designations for RRSPs, RRIFs, TFSAs and other registered plans should also be reviewed. These designations are subject to separate statutory rules and changing a will does not necessarily change an existing beneficiary designation.¹⁴
The enduring power of attorney and personal directive should also be considered. Ask whether the people appointed to make financial or personal decisions remain the people you would choose following the separation and whether any alternate appointments should be changed.
Finally, any changes to the estate plan should be considered together with the family property matter. Existing agreements, court orders and support arrangements may affect what changes should be made. Reviewing each document and designation individually is preferable to simply assuming that a separated spouse should be removed from everything.
Why Review Your Estate Plan After Separation?
As Lalonde shows, separation does not necessarily have the effect on inheritance rights that a person may expect. The result can depend on whether there is a will, how long the spouses have been separated, whether there is a family property agreement or order and what beneficiary designations and other estate-planning documents remain in place.
The purpose of reviewing an estate plan after separation is not necessarily to remove a spouse. It is to make sure that the will, beneficiary designations, enduring power of attorney, personal directive and any related agreements still reflect your intentions and work together as intended.
These issues are better addressed at the time of separation rather than left until the divorce is final.
SB LLP: Your Experienced Alberta Wills and Estates Lawyer After Separation
At SB LLP, our Wills & Estates team assists clients with estate planning and administration, including wills, beneficiary designations, enduring powers of attorney and personal directives.
If you are separated or going through a divorce, consider reviewing your estate plan before the divorce is final. Contact SB LLP today through the website contact form or by calling (780) 438-5281.
¹ Lalonde v Waddell, 2026 ABCA 296 (CanLII), <https://canlii.ca/t/kn5hf>.² Lalonde v Waddell, 2026 ABCA 296 (CanLII), <https://canlii.ca/t/kn5hf>, paras 1-2.³ Lalonde v Waddell, 2026 ABCA 296 (CanLII), <https://canlii.ca/t/kn5hf>, para 12.⁴ Lalonde v Waddell, 2026 ABCA 296 (CanLII), <https://canlii.ca/t/kn5hf>, paras 2, 7-10, 18-19.⁵ Lalonde v Waddell, 2026 ABCA 296 (CanLII), <https://canlii.ca/t/kn5hf>, para 11.⁶ Wills and Succession Act, SA 2010, c W-12.2, <https://canlii.ca/t/56k8t>, s 63(1).⁷ Wills and Succession Act, SA 2010, c W-12.2, <https://canlii.ca/t/56k8t>, s 63(1)-(2).⁸ Wills and Succession Act, SA 2010, c W-12.2, <https://canlii.ca/t/56k8t>, ss 23(2)(c), 25(1) and 25(3).⁹ Wills and Succession Act, SA 2010, c W-12.2, <https://canlii.ca/t/56k8t>, ss 72(b)(i), 88, 93(f) and 103.¹⁰ Lalonde v Waddell, 2026 ABCA 296 (CanLII), <https://canlii.ca/t/kn5hf>, para 13.¹¹ Family Property Act, RSA 2000, c F-4.7, <https://canlii.ca/t/56g58>, ss 11-12; see also Lalonde v Waddell, 2026 ABCA 296 (CanLII), <https://canlii.ca/t/kn5hf>, para 13. ¹² Family Property Act, RSA 2000, c F-4.7, <https://canlii.ca/t/56g58>, ss 12-14; see also Lalonde v Waddell, 2026 ABCA 296 (CanLII), <https://canlii.ca/t/kn5hf>, para 13.¹³ Insurance Act, RSA 2000, c I-3, <https://canlii.ca/t/56vzk>, ss 660-664.¹⁴ Wills and Succession Act, SA 2010, c W-12.2, <https://canlii.ca/t/56k8t>, s 71.