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What Happens When You Are Separated but Not Divorced and Your Spouse Dies?

Writer's picture: Erin Watson, JDErin Watson, JD
Two people reviewing separation agreement

In January 2022, Ontario introduced significant amendments to the Ontario Succession Law Reform Act that fundamentally changed how separated spouses are treated in matters of estate inheritance. The law now treats spouses who have been separated for at least three years as though they were divorced for inheritance purposes. Once the three-year threshold is met, separated spouses are no longer entitled to inherit from their deceased partner’s estate under Ontario’s intestacy laws. As of January 1, 2025, these amendments are now fully in effect, marking the end of inheritance rights for many separated spouses.


Previously, the law treated separated spouses the same as married couples who were still together. This meant that even if a couple had been separated for years, the surviving spouse could inherit from the deceased’s estate under Ontario’s intestacy laws (where there is no Will) or as a beneficiary under the deceased’s Will. For many separated couples, the law often failed to reflect the intentions of the deceased, especially in cases where a relationship had ended in all but legal terms. Under the new rules, separated spouses who meet the three-year requirement are now treated like divorced spouses, not married spouses.


Another notable aspect of the 2022 amendments to the Ontario Succession Law Reform Act is the impact on estate trustees. An estate trustee (or executor) is the person responsible for managing the deceased’s estate, including distributing assets and paying debts. Previously, a separated spouse named as an estate trustee in the deceased’s Will could carry out this role, regardless of a separation. The 2022 changes to the law states that if a separated partner is disqualified from inheriting due to separation, they are also barred from acting as the estate trustee or receiving benefits. If there is a reason why the separated spouse should continue to be the estate trustee or to receive benefits, the Will must be specific about it.


The new rules only apply to separations that began after January 1, 2022. Spouses who separated before 2022, are not automatically disqualified from inheriting unless a separation agreement or court order is in place. For spouses separated for less than three years, inheritance rights are also restricted if the couple has resolved their family law issues through a separation agreement, arbitration agreement, or court order made on or after January 1, 2022. In such cases, the surviving partner is treated as having no claim to the estate, regardless of the length of the separation.


These amendments highlight the importance of proactive estate planning, particularly for individuals in the process of separation or who are already separated.


Estate Planning Considerations for Separation and Divorce in Ontario

Three worried children

Separation and divorce can have profound implications for your estate plan, making it essential to review and update your arrangements as your circumstances change. Ensuring clarity in your estate planning documents is essential to avoid unintended disputes or complications after your death.


Here are some key estate planning considerations to avoid unintended consequences:


  • Update Your Will

    One of the first steps to take following separation or divorce is to review and update your Will. In Ontario, divorce automatically revokes any provisions in your Will that name your former spouse as a beneficiary or executor. For spouses who separated since 2022, inheritance rights are not revoked until three years post separation thus you must update your Will once your separation occurs.


    For those who separated before 2022, ensuring you have a valid Will is a must as under intestacy rules your estranged spouse will still inherit if you die without a Will. For those who wish to ensure that a former spouse continues to be the estate trustee or receive assets, an updated Will must be specific about it.


  • Update Powers of Attorney

    Powers of attorney for property and personal care grant significant authority to the individuals named in these documents. If your estranged or former spouse is currently named, consider whether they remain the appropriate choice. During separation or divorce, appointing a trusted family member, friend, or professional as your attorney can help protect your interests during incapacity.


  • Address Jointly Owned Assets

    Jointly owned assets, such as bank accounts or real estate, require special attention. In Ontario, if assets are owned jointly with a right of survivorship, they automatically go to the other joint owner when one person passes away. Switching joint assets to sole ownership or splitting ownership (tenancy in common) can help make sure your estate is distributed according to your wishes.


  • Review Beneficiary Designations

    After separation or divorce you should also review and potentially update beneficiary designations on insurance policies and retirement/registered accounts (e.g., RRSP/RRIF/TFSA). These designations are not automatically revoked upon separation or divorce, meaning your former spouse could still receive these assets unless you proactively update the designations.


    It is also critical to confirm that any changes to beneficiary designations comply with separation agreements or court orders, particularly if there are ongoing support obligations. Support obligations outlined in separation agreements or court orders often require financial arrangements, such as maintaining life insurance.


  • Protect Children or New Partners

    Trusts can be an effective tool to protect assets for children, control how and when they receive their inheritance, and prevent your estranged or former spouse from accessing these funds. Similarly, you may wish to provide for a new partner through a trust or other estate planning mechanisms.


  • Understand Separation Agreements

    Separation agreements often include estate related terms, such as property division or waivers of inheritance rights. Ensure these agreements are clear and legally binding to avoid disputes.


For those navigating separation or divorce, consulting an estate lawyer is crucial to ensure your estate plan aligns with your new reality. Proactively addressing your estate plan during separation or divorce protects your loved ones and provides peace of mind. At E is For Estates we can help you achieve your goals and ensure compliance with Ontario law.


This article is intended for informational purposes only. For personalized advice tailored to your specific circumstance, please reach out to the E is for Estates team.


Erin Watson, JD, B.A

Barrister & Solicitor

E is for Estates

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