There’s just no way around it — separation and divorce are difficult, stressful, and complicated. When you finally get the fresh start you are looking for after separating from a long-term partner, the last thing you should be thinking about is passing. Yet, in the vast majority of cases, estate planning must be done at this already difficult time. This post will consider estate planning in light of separation and divorce. Therefore, let us begin by differentiating between the separation and divorce.
Defining Separation and Divorce
Separation is defined by statute as a time where a couple begins living “separately and apart” and have no reasonable prospect for resuming cohabitation. What this essentially means is that the couple has begun living independent and separate lives, and they do not intend to live joined lives again. This does not mean that the couple must live in separate homes. The couple may, at this time, draft a separation agreement to work through any issues and to enable them to continue to live separately and apart. The couple remains legally married throughout the separation process.
Divorce is the legal end to a marriage. One or both parties in a former couple can apply for divorce. Generally, it will only be granted one year after the date when the couple began living separately and apart. After a divorce is granted, both parties are able to remarry.
How Are Separation and Divorce Treated at Death?
➤ Separation
Recent changes to Ontario’s Succession Law Reform Act (SLRA) now treat separated spouses differently than before.
If you are separated (but not divorced), your spouse may now be treated as if they had predeceased you — meaning they would no longer inherit under your will or have authority under a power of attorney — provided certain criteria are met.
Your spouse will lose their entitlements only if:
You and your spouse were living separate and apart for at least three years immediately before your death; or
You signed a separation agreement, received a court order, or had a family arbitration award settling your affairs;
and you were still separated at the time of death.
In these cases:
Any gifts to your separated spouse in your will are revoked.
Any appointment of your spouse as executor or trustee is also revoked.
If you die without a will, your separated spouse will not inherit anything from your estate.
If the separation doesn’t meet these conditions (or occurred before January 1, 2022 without a formal agreement or order), your spouse may still have full rights under your will or intestacy laws.
To ensure your intentions are honoured, it’s important to review and update your will and powers of attorney immediately after separation.
➤ Divorce
A divorce automatically revokes any:
Gifts to your former spouse under your will;
Appointment of your former spouse as an executor, trustee, or guardian.
Your will otherwise remains valid, but if you didn’t name an alternate, this could result in a partial intestacy or court appointment of an estate trustee.
➤ Support Obligations
Whether you are separated or divorced, any ongoing support obligations (e.g., spousal or child support) that exist at your death become debts of your estate and must be paid before your beneficiaries receive their share.
Don’t Forget Pensions and Registered Instruments!
Beneficiary designations on pensions, life insurance policies, RRIFs, RRSPs, and TFSAs are not automatically affected by separation or by divorce. If your spouse or former spouse is named as a beneficiary on these items, and you no longer wish for them to be the beneficiary, you must make these changes with the institution where they are held.
What About My Current Partner?
These issues are especially relevant if you enter into a new, common-law relationship upon separating from your spouse. Common-law relationships are not treated the same as marriages. Having a new, or even long-standing, common-law relationship does not effect the rights or entitlements of a previous married spouse until you are officially divorced and complete the proper steps to change designations to your current partner. Unless there is a divorce, a new will, or a change to beneficiary designations, it is quite likely that a separated but not divorced ex-spouse will have a valid claim to your estate and quite likely that a common-law spouse will have no right to any of your estate. Moreover, if you do not have a will, and have both an ex-spouse and a common-law partner, it is likely that your common-law spouse will inherit nothing from your estate.
The best thing to do when you are in this circumstance is to consult your lawyer. They will help you figure out where you need to make changes, and what will be the simplest, most cost-effective way to reflect your end-of-life wishes.
If you are contemplating divorce or separation, or if you are already divorced or separated and have not made changes to your documents, it is time to update your estate plan. Do not hesitate to contact an estate planning professional.
