Impact of Marriage, Divorce and Separation

(a) If a person gets married

Summary

The act of marriage does not affect the validity of an existing will.

Discussion

Prior to January 1, 2022, Ontario’s SLRA provided that a will is revoked by the marriage of the testator, subject to certain exceptions.

This rule is now removed, meaning marriage will no longer result in an existing will being revoked.

(b) If a person gets divorced

Summary

Unless otherwise indicated in the will, any gift or appointment to the spouse is revoked by the divorce.

Discussion

The SLRA provides that except where a contrary intention appears in the will, the will is to be construed as though the former spouse predeceased the testator where the testator’s marriage is terminated by divorce or is declared a nullity and (i) any devise or bequest of a beneficial interest to the former spouse is revoked, (ii) any appointment of the former spouse as executor or trustee is revoked, and (iii) the conferring of any power of appointment upon the former spouse is revoked (see SLRA s. 17(2)).

Please note that the SLRA does not make any changes to beneficiary designations on registered plans or insurance policies in the event of a divorce and that the Substitute Decisions Act (Ontario), which deals with Continuing Powers of Attorney for Property and Powers of Attorney for Personal Care, does not provide for the automatic revocation of a former spouse appointed as Attorney.

(c) If a person becomes separated from their spouse

Summary

A gift to a separate spouse is revoked and the separated spouse is considered to have predeceased the testator.

Discussion

Ontario’s SLRA provides that if a spouse was separated from the deceased on the deceased’s death, a gift of property or the appointment of the spouse as estate trustee is revoked and the will is construed as if the separated spouse predeceased the deceased person (SLRA s. 17(3)).

A person is considered to be separated if at the time of death they were both:

(a) living separate and apart, and

(b) any of the following four events occurred on or after January 1, 2022 (SLRA ss. 17(4) and (5)):

(i) the spouses lived separate and apart as a result of the breakdown of their marriage for a period of three years immediately before death;

(ii) they entered into an agreement that is a valid separation under Part IV of the Family Law Act;

(iii) a court made an order with respect to their rights and obligations in the settlement of their affairs from the breakdown of their marriage; and

(iv) a family arbitration award was made under the Arbitration Act, 1991 with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage.