In the midst of the global pandemic, substantive changes also came to the Estates world, particularly with respect to the Succession Law Reform Act (the “SLRA”). See also “Substantial Compliance Comes to Ontario”.
The new legal entitlements that a former/current spouse may have in relation to your Estate are discussed below.
Effect of Marriage on a Will (Bill 245-January 1, 2022)
It used to be that a Will or part of a Will was revoked by marriage. Bill 245 repealed clause 15(a) and section 16 of the SLRA and effective January 1, 2022, Wills are no longer automatically revoked by marriage.
While marriage no longer revokes a Will, testamentary gifts made to a spouse and any appointment of a spouse as executor or trustee are revoked upon separation.
Formerly, this revocation only applied upon divorce.
Changes to Testamentary Entitlements of Separated Spouses
Subsection 17(2) of the SLRA provides that “[e]xcept when a contrary intention appears by the will, where, after the testator makes a will, his or her marriage is terminated by a judgment absolute of divorce or is declared a nullity, (a) a devise or bequest of a beneficial interest in property to his or her former spouse; (b) an appointment of his or her former spouse as executor or trustee; and (c) the conferring of a general or special power of appointment on his or her former spouse, are revoked and the will shall be construed as if the former spouse had predeceased the testator.
The new subsection 17(3) provides that subsection 17(2) will apply, with necessary modifications, where the testator and the testator’s spouse are separated at the testator’s death.
When is a spouse considered to be separated from the testator?
A spouse is considered to be separated from the testator if, before the testator’s death, they were living separate and apart as a result of the breakdown of their marriage for a period of three (3) years, they entered into a valid separation agreement, or either a court order or a family arbitration award was made in the settlement of their affairs arising from the breakdown of their marriage.
Spousal entitlements on an Intestacy
When someone dies without leaving a valid Will, he/she is deemed to have died “intestate”.
Similarly, Bill 245 added section 43.1 to the SLRA which prevents separated spouses from being able to receive spousal entitlements on an intestacy.
A spouse will be considered separated from the deceased for this purpose in accordance with the same criteria set out above.
Several other provinces (including B.C. and Alberta) have adopted similar legislation.
Therefore, subject to a contrary intention appearing in your Will, a gift to your spouse made in your Will is automatically revoked upon your separation.
If you would like to benefit your ex-spouse in your will (it does happen!), then you should update your Will post separation to ensure it is clear you intend to make a gift to them despite the separation.