Separated Spouses and Intestacy: Important Changes Coming in 2025

As we approach the end of 2024, a significant change in Ontario’s estate law is about to take full effect, impacting separated spouses and their inheritance rights. This development particularly affects situations where someone passes away without a Will, known legally as dying “intestate.” Understanding these changes is crucial for anyone who is separated or considering separation in Ontario.

Understanding the Change: The Three-Year Rule

The Succession Law Reform Act (SLRA) was amended by the Accelerating Access to Justice Act in 2021 to introduce an important change: separated spouses will now be treated the same as divorced spouses when it comes to inheritance rights. This means that if someone dies without a Will, their separated spouse won’t automatically inherit their share of the estate as they previously would have.

Think of it this way: Before this change, a legal separation wasn’t enough to prevent a spouse from inheriting – only a formal divorce would do that. Now, separation alone can be sufficient under certain conditions.

When Does This Apply?

For a spouse to be considered “separated” under these new rules, they must meet specific criteria. The key requirement is that the couple must have been living apart due to a marriage breakdown, plus at least one of these conditions:

1. They lived separately for three years immediately before the death.
2. They signed a valid separation agreement under the Family Law Act
3. A court made an order about their rights and obligations following the marriage breakdown.
4. They received a family arbitration award under the Arbitration Act regarding their marriage breakdown.

Why 2025 Matters

While this amendment has technically been in effect since January 1, 2022, there’s a crucial detail: the three-year separation period couldn’t start counting until the law came into effect. This means that January 1, 2025, marks the first time that couples who have been separated since January 1, 2022, can meet the three-year requirement without needing any formal agreements or court orders.

Real-World Impact

Let’s consider a practical example: Sarah and Michael separated in January 2022 but never formalized their separation with legal documents. Under the previous rules, if Michael were to pass away without a Will in 2024, Sarah would still be entitled to inherit as his spouse. However, after January 1, 2025, if they remained separated the entire time, Sarah would no longer have automatic inheritance rights, even without formal separation papers.

What This Means for Estate Planning

This change emphasizes several important points for Ontario residents:

1. The critical importance of having an up-to-date Will.
2. The need to review and update estate plans after any significant life change.
3. The value of documenting separation dates and living arrangements
4. The potential need for formal separation agreements or court orders if the three-year waiting period hasn’t been met.

Looking Forward

Estate administrators and family law practitioners should prepare for this change, as it will simplify some estate administration processes while potentially complicating others. For separated spouses who have been living apart since January 2022 or earlier, this change provides a new pathway to clarifying inheritance rights without requiring formal legal documentation.

Take Action Now

If you’re separated or considering separation, consider these steps:

1. Document your separation date and living arrangements.
2. Create or update your Will to reflect your current wishes.
3. Consult with a legal professional about how these changes might affect your specific situation.
4. Consider whether a formal separation agreement might be beneficial, especially if you haven’t met the three-year requirement.

Remember, while this change provides additional protection for separated spouses, it’s no substitute for proper estate planning. The best way to ensure your wishes are carried out is to have a properly drafted and up-to-date Will. If you need help, reach out to Peter@smartwills.ca

Final Thoughts

This legislative change reflects a growing recognition that the legal implications of separation should more closely align with the practical realities of separated couples. As we move into 2025, it provides an important opportunity for separated spouses to review their estate planning and ensure their affairs are in order.

You might also want to check out our blog post on, Protecting Your Children’s Inherited Wealth: Smart Planning for Marital Risk in Ontario