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Separated Spouses

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This post looks at another change to Ontario estates law, this time relating to separated spouses. Prior to January 1, 2022, divorced and separated spouses were treated differently for the purpose of gifts in a will, appointments as estate trustee under a will, and inheritance on intestacy.  

For the purpose of the new rules, “separated spouses” are spouses who were legally married but who, immediately before the death of one of the spouses, lived separate and apart as a result of the breakdown of their marriage for at least three years or who have been living separate and apart and who enter into a valid separation agreement or obtain a court or arbitration order regarding settlement of their affairs arising from the breakdown of their marriage.

Now, separated spouses are not entitled to a gift (inheritance) in their deceased spouse’s will, and an appointment as estate trustee is considered revoked, as is the right to inherit on an intestacy. In addition, a married separated spouse is not entitled to equalization of net family property against their deceased spouse’s estate.

Why was the law changed? For a variety of reasons, some couples who separate do not take steps to formalize the end of their marriage. As the law stood, the result could be that a long-estranged spouse inherited all or substantially all of their spouse’s estate simply because while they no longer regarded one another as spouses, Ontario estate law did.

Rather than rely on the passage of time, or the operation of law, it is a better idea to just make a new will.  That way your estate will be distributed based on your own decisions about what is important to you.