UNDERSTANDING THE IMPACT OF MARRIAGE, DIVORCE, AND SEPARATION ON WILLS IN ONTARIO

In Ontario, significant legislative changes have redefined how marriage, divorce, and separation affect Wills. These amendments, effective January 1, 2022, aim to modernize estate planning and better reflect contemporary relationships.

MARRIAGE AND WILLS

Previously, marrying would automatically revoke any existing Will, potentially leading to unintended intestacy if a new Will wasn’t promptly created. This rule was particularly problematic in cases of predatory marriages, where individuals might marry vulnerable persons to gain financially from the revocation of prior Wills. To address such concerns, the Succession Law Reform Act (SLRA) was amended to ensure that, for marriages occurring on or after January 1, 2022, existing Wills remain valid.

DIVORCE AND WILLS

The SLRA has long stipulated that upon divorce, any gifts to a former spouse and their appointments as executor or trustee in a Will are revoked, unless the Will explicitly states otherwise. This provision ensures that an individual’s estate plan reflects the end of the marital relationship, preventing unintended benefits to an ex-spouse.

SEPARATION AND WILLS

A notable change concerns separated spouses. As of January 1, 2022, separated spouses are treated similarly to divorced spouses regarding Wills. This means that if spouses are considered separated at the time of death, any bequests to the separated spouse and their roles as executor or trustee are revoked, unless the Will indicates a contrary intention. A spouse is deemed separated if, before the testator’s death:

  • They lived apart due to a marriage breakdown for three years immediately preceding the death.
  • They entered into a valid separation agreement.
  • A court order or family arbitration award concerning their rights and obligations due to the marriage breakdown was made.

It’s important to note that these provisions apply only if the separation events occurred on or after January 1, 2022. Therefore, individuals who separated before this date may not be affected by these changes.

RECOMMENDATIONS FOR ESTATE PLANNING

Given these legislative updates, it’s crucial to:

Review and Update Your Will: Ensure it accurately reflects your current marital status and intentions, especially after marriage, separation, or divorce.

Seek Legal Advice: Consult with an estate planning lawyer to understand how these changes may impact your estate and to ensure your wishes are properly documented.

Our team at Douglas Law Firm can assist you in staying informed and proactive in updating your estate plan to help ensure that your assets are distributed according to your intentions, providing peace of mind for you and your loved ones.

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