Separated Spouses and Intestacy: Important Changes in 2025

smartwills.ca | Peter R. Welsh Estates & Trust Law
Updated January 6th, 2025

A significant change in Ontario’s estate law is about to take full effect…

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.

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.

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.

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

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.

Peter R. Welsh, Estates and Trust Law