Separated spouses treated more like divorced spouses under new estates laws

Updating your will is not always the first thing on your mind when your marriage is splitting up. 

Luckily, new changes to the Succession Law Reform Act will take care of some of the work for you following the passage of Bill 245 at Queen’s Park, which eliminates property rights for  separated spouses of the deceased. 

Section 17 of the SLRA 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.  

Now the same rules apply if the parties had separated prior to the testator’s death, but never quite got around to finalizing their divorce for whatever reason. 

Couples with valid separation agreements in place or who were living separately and apart at the time of the testator’s death are among those who will count as separated under the updated law. 

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.  

For those who die without a will in place, Bill 245 adds a new provision to the SLRA preventing separated spouses from inheriting on an intestacy. This is a potentially significant change, since the surviving spouse of a deceased person typically gets the first $350,000 in the estate, with the remainder divided between the spouse and any surviving children. 

The legal amendments have not yet taken effect, since implementation has been delayed until at least January 1, 2022. 

Whatever your individual circumstances, it’s important to get help from an experienced professional who can ask the right questions about your spousal situation and help ensure your wishes are carried out.  

The separated spouse changes were not the only big amendments to Ontario’s estate laws contained in Bill 245. Here’s a summary of some of the others: 

Permanent virtual witnessing: Covid-19 prompted emergency regulations allowing testators to have their wills and powers of attorney witnessed remotely, without the need to meet in person with their lawyer. Those changes have now been made permanent. It’s unfortunate that it took a pandemic to bring estate planning into the 21st Century, we’ve embraced this and other technological advances to make legal assistance more accessible and affordable for all. 

Substantial compliance: Judges can now validate wills that would otherwise have been declared void due to technical errors, such as missing signatures or other minor issues. This moves Ontario from a regime of “strict compliance” to one of “substantial compliance,” which is good news for testators and intended beneficiaries who will not be penalized with intestacy for minor mistakes. Still, the best way to make sure your will accurately reflects your wishes is to hire an experienced lawyer to draft one for you.

Disclaimer: The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this website are advised to seek specific legal advice by contacting members of Laredo Law (or their  own legal counsel) regarding any specific legal issues.

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