Marriage, Separation, and Your Estate Plan

April 9, 2022

By Brian Babcock

Are you married? About to be married? About to become separated or divorced? Already separated but not divorced?

If you answer any of these questions “yes”, you need to be aware of changes to Ontario’s Succession Law Reform Act that came into effect on January 1st 2022.

Prior to that date, if you had an existing will and got married, the marriage automatically revoked your existing will unless the will was “made in contemplation of marriage”, which required a declaration to that effect in the will. So that meant if you were living with your spouse without marriage and made a will in their favor and then subsequently decided to get married that will would become invalid. There were other exceptions that would allow the spouse to elect to take under the will, but this remained a trap for the unwary.

The amendments to the Act remove that trap but create a new issue if you assume that the marriage still will automatically revoke an old will. For example, if while unmarried you had made a will in favor of your nieces and nephews, that will would still be valid even after your marriage. Your spouse would have rights under the Act to claim a preferred share and other amounts, but your nieces and nephews would still be entitled under the will. This may create added confusion, stress and expense.

Because of this we still recommend that couples planning to marry meet with their lawyer to review their current situation, and revise their estate plans, including their wills, accordingly. A new will is cheaper than leaving a mess behind, and can be a happy occasion.

The second major change effective January 1st is that separation now makes a will invalid in certain circumstances. Previously, only the final divorce invalidated an existing will in favour of your spouse. For that reason we frequently advised clients to immediately revise their wills on separation, but if you waited to consult a lawyer, or were unaware of this risk, your soon to be former spouse might gain a windfall.

“Separation” is a defined term in the Act. Spouses are considered to be separated for the purposes of the Act if:

  • before death they lived separate and apart for a period of three years immediately prior to death;
  • they entered into a valid separation agreement;
  • a court had made an order arising from the breakdown of their marriage; or
  • a family arbitration award had been made arising from the breakdown of their marriage

AND at the time of death they were living separate and apart as a result of the breakdown of their marriage.

You can see that this is not a simple definition and has several built-in traps. One example is that it does not explicitly deal with spouses who may separate and then reconcile, and this is particularly problematic with trial reconciliations or reconciliations that are brief prior to death. It is too early to know whether or not the courts will infer provisions similar to those that keep separation agreements alive during a trial separation. It is quite possible that the courts will say that if the law intended that result the amendments would have said so.

Another potential trap is the fact that this amendment applies retroactively to include wills made prior to January 1st 2022 but only if the separation continues for three years after January 1st 2022. In other words, the soonest that the will could be invalidated by separation without an agreement or order would be January 1st 2025. During that transitional period, you would still want to revoke the will or making new will as part of your fresh estate plan to protect your assets from your soon to be former spouse

These changes affect your will only. They do not affect other aspects of your estate planning such as joint tenancies, or preferred beneficiary designations under pensions, insurance plans or Powers of Attorney. Although separation may equitably sever a joint tenancy converting it to tenancy in common, this legal complexity is confusing and would require somebody to be aware of it to protect your assets. Far better that as part of your post separation estate planning, you review all of your assets and designations to make them reflect your wishes in your newly changed circumstances.

Marriage breakdown is always a difficult and stressful time. Clients often do not want to discuss issues immediately. We hope that this article has made you aware of some of those risks and we encourage you to speak with your lawyer immediately whenever your circumstances change, whether unhappily due to marriage breakdown or happily due to finding a new spouse or having children. Blended families create their own set of issues that may affect estate planning.

The estate planning lawyers at Weilers Law have decades of experience assisting people like you and are available to assist you with your estate plan. We work closely with investment and financial advisors to achieve your goals. We also offer our Saturday Wills Clinic, which is an opportunity to walk in without an appointment and see a lawyer to discuss your estate planning issues. If you think we may be able to help you, please get in touch.