Changes to wills & estate planning in marriage

On January 1, 2022, changes to Wills and Estates planning legislation in Ontario went into effect that have some wide reaching implications for married and separated spouses.

Until recently, it was a longstanding principle of law in this jurisdiction that marriage revoked a will made prior to the marriage, unless the will was specifically made in contemplation of marriage. As of January 1, 2022, this is no longer the case, as section 16 of the Succession Law Reform Act (SLRA) is repealed by Bill 245, the Accelerating Access to Justice Act, 2021. Wills made prior to marriage now survive the marriage, whether or not the will was specifically made in contemplation of the marriage.

Eliminating spousal entitlement

While this new rule may create better opportunity for efficiency, without proper planning it can also result in unintended consequences from the family law perspective.

A provision to the SLRA has also been added that eliminates spousal entitlement to property under Part II of the SLRA for separated spouses, whether the former spouse dies with a will or intestate (ie. without a will). The definition of “separated” within the context of this provision is:

1. The former spouses have been living separate and apart for minimum 3 years in the period immediately preceding the death;
2. The former spouses have entered into a valid Separation Agreement under Part IV of the Family Law Act;
3. The former spouses have a family court order setting out their respective rights and obligations as relating to the issues arising from the breakdown of their marriage; or
4. The former spouses have a family arbitration award.

Under the previous version of the legislation, the spousal property entitlement continued until the former spouses were divorced, so this change is important for separated-but-not-yet-divorced former spouses to understand.

It is important to get family law and estate planning advice at any major life event stage, whether it be a new cohabitation, a marriage, or a separation. With the recently legislative changes, spouses or former spouses should be seeking out the expertise of their Family and/or Estate planning lawyers to ensure their Will reflects their most current wishes.