Do not forget that marriage provides some protection to spouses, whether it is at the time of divorce or death. Let us also remember that the de facto partner, i.e. the one with whom we live, whether it is for one year or thirty years, does not enjoy the same protection established by law. If one desires to be protected there must be documents accordingly. Although the married spouse or the de facto partner does not enjoy full protection in case of death, especially if the couple has adolescent children together, one should however not neglect the legal consequences of marriage or a de facto partnership: simply to live separately, even if it has been for many years, does not change such legal status.
Meeting a new partner can happen quickly. One puts things on hold, we think that the divorce process is just a formality and sometimes we forget to finish the paperwork relating to the end of our previous relationship.
Some laws will recognize a de facto partner status (the Income Tax Act, the Quebec Automobile Insurance Act, the Quebec Pension Plan, etc…). Reference should be made to each of these laws, therefore, for the definition they give to the word "spouse." Moreover, different individuals could equally be recognized as your spouse under two different laws.
It would be unfortunate, especially after several years of cohabitation with someone else, that it would be your former spouse who inherits a part of your property. Imagine the scenario! For in matters of succession, the de facto partner is not recognized.
Indeed, in the absence of a will, the "spouse" collects a portion of the estate, the portion varies depending on the presence of a child, a parent, siblings, without forgetting that there is division of family property and the matrimonial regime. The term "spouse" includes only the married spouse or common-law partner.
In the absence of a current will, failure to proceed with the divorce or dissolution of civil union can have serious consequences, especially because your ex remains your spouse within the meaning of the law regarding your estate.
During a divorce, there is a dissolution of the matrimonial regime, division of family property and, also, this has the effect of cancelling the bequests made to the spouse prior to the divorce or dissolution of civil union, unless it has been your intention to benefit your former spouse even in case of divorce or dissolution of civil union (1).
Although, even if we have thought about updating our will in order to benefit our new flame rather than the former spouse with whom we are still married, some other effects of marriage or civil union can continue to benefit the former spouse. So, although the change in the will is an excellent initiative, it would not be complete to protect you and your new flame without finalizing the dissolution of your previous union.
(1) Section 764 of the Civil Code of Québec.