Ontario estates law may have caught up with common sense on the property rights of separated spouses after a landmark amendment finally took full effect.
Section 17 of the Succession Law Reform Act has long recognized that divorced testators would generally not want their former partners receiving gifts or serving as executor, by presumptively revoking those parts of the will and treating the ex-spouse as if they had predeceased the testator.
However, until the passage of Bill 245, the Accelerating Access to Justice Act, the same could not be said of separated couples who split up prior to the testator’s death, but never quite got around to finalizing their divorce for whatever reason.
Now the same rules for divorced couples apply to separated couples with valid separation agreements, court-ordered settlement arrangements or family law arbitration awards count as separated under the updated law, as well as couples who had been living separately and apart at the time of the testator’s death for three years or more.
The changes were implemented at Queen’s Park all the way back in the pandemic era. However, since the Act was not retroactive, the three-year separation clock only started ticking on the day that the law went into effect: January 1, 2022, meaning some already-separated couples would have to wait longer before they were covered by the law. That transition period officially ended as we entered 2025.
Of course, there are cases where amicably separated partners may want their ex to inherit even after a split, and the s. 17 revocations will not kick in if a will specifically states this preference.
Arguably the most significant Bill 245 change was an amendment that prevents separated spouses from inheriting on an intestacy. The surviving spouse of a deceased person would otherwise typically be entitled to the first $350,000 in the estate, with the remainder divided between the spouse and any surviving children.
Still, the new law is no excuse for inaction on the part of newly separated spouses, who should think about updating their will immediately to reflect their new circumstances – even if it doesn’t seem like a priority as their relationship disintegrates.
Whatever your individual circumstances, an experienced professional can help you by asking the right questions about your spousal situation and help ensure your wishes are carried out after you’re gone.
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