Amendments to Ontario’s Succession Law Reform Act (“SLRA”) and Family Law Act (“FLA”) have significantly changed how the law treats spouses after separation. These reforms are especially important for individuals who are separated but not yet divorced, as well as for anyone negotiating a separation agreement or updating their estate plan.
Family law and estate planning are now more closely connected than ever.
In Ontario, separation now affects inheritance, not just divorce. If one separated spouse dies, the other may lose what the will left them, the right to act as executor, and any automatic share if there is no will.
Marriage No Longer Revokes an Existing Will
Until recently, getting married automatically revoked any will made before the marriage (unless the will expressly stated it was made in contemplation of marriage). That rule no longer applies to marriages that took place on or after January 1, 2022.
Now, a will made before marriage generally remains valid after marriage.
Why this matters:
Many people assume that marriage “resets” their estate plan. That is no longer the case. If a person enters a new marriage without updating their will, the will may still benefit a former partner, exclude a new spouse, or fail to reflect the reality of a blended family. From a family law perspective, this makes early estate planning advice essential, particularly in second marriages.
Courts Can Validate Informal Wills in Ontario
The SLRA now allows courts to recognize a will or testamentary document that does not strictly comply with formal signing requirements, as long as the court is satisfied that the document reflects the deceased’s intentions.
This change means that drafts, notes, or other informal documents may be relied upon in certain circumstances.
Why this matters:
Separations are often emotionally charged, and people may make informal notes or documents expressing how they want their estate distributed. While this change provides flexibility, it also increases the potential for disputes among family members about whether a document was truly intended to operate as a will.
Separated Spouses May Lose Estate Rights — Even Without a Divorce
One of the most significant reforms affects separated spouses. Previously, a legally married spouse retained inheritance rights unless the parties were divorced. Separation alone was not enough.
Under the amended SLRA, a separated spouse may now be treated as though they predeceased the deceased for estate purposes. This means they may lose gifts under a will, the right to act as executor, and any entitlement on intestacy.
A spouse is considered “separated” if, before death:
- the spouses lived separate and apart due to marital breakdown for at least three years;
- they entered into a valid separation agreement; or
- a court order or family arbitration award resolved issues arising from the breakdown.
As of January 1, 2025, the three-year separation rule is fully in effect.
Why this matters:
A person can be legally married but still excluded from their spouse’s estate. This can come as a shock to surviving spouses who believed their marital status alone protected their inheritance rights. It also means that separation agreements now carry serious estate consequences. Raise that with a separation attorney in Mississauga before the agreement is signed.
Intestacy and Family Law Elections Still Require Careful Analysis
Although a separated spouse may lose inheritance rights under the SLRA, separation does not automatically eliminate all family law claims. In many cases, a surviving spouse may still have the right to elect for an equalization of net family property under the Family Law Act instead of taking under the will or on intestacy.
Amendments to the FLA clarify how these regimes interact and ensure consistency where a spouse no longer has estate entitlements due to separation.
Why this matters:
Estate trustees, surviving spouses, and family members must carefully assess whether a family law election is available, even where estate rights have been lost. This overlap can be complex and often requires both family law and estates advice.
What This Means for Separating Couples
These legislative changes have practical consequences for anyone going through a separation:
- Update estate planning early. Separation should prompt a review of wills, beneficiary designations, and powers of attorney.
- Understand the impact of separation agreements. Signing a separation agreement can immediately affect estate rights.
- Do not rely on divorce alone. Waiting for a divorce may no longer protect a spouse’s estate interests.
- Expect increased litigation risk. Disputes may arise over whether spouses were truly “separated” at the time of death.
Talk to a Separation Attorney in Mississauga
Ontario’s reforms reflect a clear policy shift: separation now carries meaningful legal consequences, even in the absence of divorce. For separating spouses, these changes can significantly affect inheritance, property rights, and post-death claims.
If you are separated, negotiating a separation agreement, or considering estate planning during or after a relationship breakdown, it is critical to obtain legal advice that considers both family law and estate law implications.
Before you sign anything, speak to a separation attorney in Mississauga. Loyens Law (Dad Law) acts for separated spouses on separation agreements, parenting, and support. Book a consultation.
