Will Updates: Marriage, Separation, and Your WillBy Kormans LLP
With the New Year came several changes to the Succession Law Reform Act that could directly impact you as you are making your estate plan. We discuss two major changes in today’s blog as follows: Marriage no longer revoking your Will automatically, and revocation of your Will through mere separation instead of divorce (cue a collective gasp from lawyers heard all around Ontario).
First though: The Basics. What does “revocation” of your Will really mean? If your Will is revoked, it means that what you set out in your Will, including appointments of estate trustees, cash gifts to charities, and bequests to family members and friends, become invalid. Instead, the laws of “intestacy” (dying without a Will), kick in, and your estate is distributed in accordance with Succession Law Reform Act to next of kin.
Part I: Marriage and Your Will:
Prior to January 1, 2022, if you had a Will that did not expressly state that the Will was made in contemplation of marriage, and you subsequently got married, then your will was automatically revoked. As of January 1, 2022, marriage no longer revokes an existing Will.
Sure, this is big news for lawyers, but what does this mean for you? Well, if you have a Will that names another family member as a beneficiary in your Will and are about to get married, you can no longer assume that your marriage will oust that clause. Although your married spouse may still have an entitlement under the Family Law Act, your previous beneficiary designations in your Will do not go away. This applies to any marriage that takes place after January 1, 2022.
So, you are going to need to be a little more proactive now. If you wish your spouse to share in your estate as a beneficiary in your Will, it may be a good time to revisit your estate plan!
Part II: Separation and Your Will:
Now it is several years down the road: you completed your Will after you got married, naming your spouse as a primary beneficiary. But now the marriage is rocky, and you decide to separate. Unfortunately, you cannot get divorced right away because you are still working out a settlement, or maybe you have not yet passed 1 year from the date of separation (more on this later). Did you know that your former-but-not-yet-divorced spouse could still inherit in accordance with the Will you completed while you were happily married?
While that frightening scenario might still happen, as of January 1, 2022, the Government of Ontario put up a few guardrails to help protect you.
Now, it is possible that former-but-not-yet-divorced spouse, can be disinherited from your Will prior to divorce if certain conditions are met. In accordance with the Succession Law Reform Act, they could be excluded as a beneficiary in your Will if:
- Before your death
- You lived “separate and apart” as the result of the break down of marriage, for a period not less than three (3) years, if that three (3) year period is immediately before your death (i.e., you do not qualify if you separate for 3 years but are back together at the time of your passing).
- You have a valid Separation Agreement with respect to your rights and obligations regarding the breakdown of marriage.
- You have a Court Order with respect to your rights and obligations regarding breakdown of marriage.
- You have an Arbitration Award with respect to your rights and obligations regarding breakdown of marriage.
- And at the time of passing:
- You and your former spouse were living separate and apart.
What does this mean for you and your Will after you separate?
If you used to think that separating would mean your spouse could not share in your estate under your Will – you’d be wrong. But now, it is possible that a former-but-not-yet-divorced spouse could be excluded from inheriting under your Will, but only in certain circumstances. Nonetheless, if you are not proactive about obtaining a Separation Agreement, Arbitral Award, or Court Order, this new legislation still leaves a 3-year gap, during which time your former-but-not-yet-divorced spouse could still receive whatever you “willed” to them during your marriage.
Even then, your estate trustee may still be caught in a legal and factual argument with your former spouse: alleging that separation happened over 3 years ago, and with your former-but-not-yet-divorced spouse alleging it did not. Then facts and evidence will need to be gathered and presented to the Court for determination.
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