In Ontario, if you made a Will before getting married, it would be revoked upon marriage. However, a new bill was passed that changed many things.
On January 1, 2022, the Bill 245 Accelerating Access to Justice Act, 2021, came into effect that had several changes to the Succession Law Reform Act (SLRA). The new rules apply to marriages on or after January 1, 2022, will not revoke an existing Will in Ontario and a Will made before marriage will continue to be valid.
When you get divorced in Ontario, that doesn’t automatically cancel the Will. Instead, only the provisions in your Will that refer to your spouse will be revoked. Therefore, your former spouse will no longer be the executor, trustee or guardian. Furthermore, any gifts you leave to your former spouse will go to someone else, depending on the structure of the Will.
SLRA changes also impacted the Wills and the rights of separated spouses. Now, spouses that have been separated but not divorced for at least three years or have a valid separation agreement or court order will be treated the same as divorced spouse.
With that, a separated spouse who is an estate trustee or beneficiary in a Will will no longer be entitled to the benefits under the Will.
There are also new rules that now apply to formal or longer-term separations. Based on the Succession Law Reform Act, “separated” is when:
- Both parties had lived apart at the time of death due to the dissolution of marriage for at least three years
- Both parties lived separately at the time of death due to the dissolution of marriage
- A court order or arbitration award or valid separation agreement had been made concerning their affairs dealing with the marriage dissolution
Suppose any of the above is applicable to the type of separation you have. In that case, a Will before the separation will be dealt with as if the separated spouse pre-deceased the testator, which also applies to divorce.
So, what happens to the beneficiaries? Well, they are not affected by separation or divorce automatically. Instead, they should be changed with the financial institution or by explicit language in a new Will that is created after separation.
New Common Law Spouse
A new common-law spouse may be able to receive the deceased’s pension and will not fall under the deceased’s estate. Moreover, a common-law spouse that is financially dependent on the deceased may file for a dependent support claim.
Consult an Expert
The Ontario government took a step in the right direction to balance out the rights of those who have been married, divorced or separated. However, there is a need for clarification and to eliminate any confusion.
Here are some questions you should ask an estate lawyer:
- What changes will my Will undergo?
- Are there any side effects or any additional precautions that I need to take to protect my family and my wishes?
- Will my Will still be valid after divorce?
- What are the new rules regarding a separated spouse?
- I am separated but not divorced. What are my rights?
As you can see, this is very complicated, even for estate lawyers. Due to the complexities that these changes can bring, it is best to get legal advice to understand how your Will may be affected by the new rules.
The new changes to the Succession Law Reform Act have great implications for divorce, separation and new common-law spouses. It is important to have a qualified estate lawyer to help you navigate this new legislation to ensure that your wishes are honoured as intended.
Dreyer Davison Lawyers LLP deals with Wills and Estates. We are committed to preserving the best interests of families across the Fraser Valley and the Lower Mainland. Get in touch with us.