Area of Law: Wills, Estates and Powers of Attorney
Answer # 149
How does marriage or divorce affect your Will?
Region: Ontario Answer # 149Marriage
Bill 245 Accelerating Access to Justice Act, 2021, came into effect January 1, 2022 making a number of changes to the Succession Law Reform Act (SLRA). Under the new rules, marriage occurring on or after January 1, 2022 does not revoke an existing Will in Ontario and a Will made before marriage will continue to be valid. To properly draft a Will or Power of Attorney; or if you are involved in an estate dispute and need help, ask a lawyer now.
Previously in Ontario, if you made a Will prior to being married, it would be revoked (or invalidated) upon marriage.
Since the laws across the country are not the same, deciding which laws apply if the person married in one province and died in another, can be unclear. Further, if a person marries or dies outside of Canada, the decision as to which law applies becomes even more complicated. To avoid such difficulties, it is best to write a new Will upon marriage, or when entering into a common-law relationship.
Divorce
A divorce has a different effect on your Will. If you get a divorce, your Will is not cancelled. Instead, only the provisions in your Will that refer to your spouse are revoked. This means that your former spouse will no longer be your executor, trustee or guardian, and any gifts you left to your former spouse will go to someone else. Who the gifts will now go to will depend on the structure of your Will.
Changes to the SLRA and property rights of separated spouses
Further changes to the SLRA changed the rules regarding Wills and the rights of separated spouses.
As of January 1, 2022, spouses that have been separated for at least 3 years, but not divorced, or have a valid separation agreement or court order, are treated the same as divorced spouses under the ex-spouse’s Will. This means that a separated spouse who has been designated as an estate trustee or a beneficiary in an ex-spouse’s Will is not entitled to the benefits under that Will. Previously, in this situation, unless the spouses had a separation agreement with specific provisions for property rights, the ex-spouse could apply for part of the estate under family law.
Getting the legal help you need
Wills are extremely important documents and relatively inexpensive to have prepared professionally. Because it can get confusing, you should consult a lawyer and consider making a new Will when you get divorced, or become separated.
To properly draft a Will or Power of Attorney; or if you are involved in an estate dispute and need help, ask a lawyer now.
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