Separated Spouses and Inheritance Rights


As of January 1, 2022, amendments to Ontario's Succession Law Reform Act (SLRA) can disqualify separated spouses from inheriting from one another. These changes apply whether a person has a Will (testate) or dies without one (intestate). To inherit despite separation, a Will must explicitly state such an intention.

These amendments ensure that separated spouses are treated similarly to divorced individuals regarding inheritance rights. Previously, only divorced spouses were barred from inheriting under an ex-spouse's Will or intestate estate. However, it’s crucial to note that there are specific timing criteria, and the new regulations do not apply to all separated spouses.

The changes stem from Bill 245 – the Accelerating Access to Justice Act, 2021. Section 17 of the Succession Law Reform Act was revised to revoke gifts to a "separated spouse" in a Will, mirroring the rules for divorced individuals. Additionally, Section 43.1 was introduced, stipulating that intestacy rules no longer apply between separated spouses. Consequently, separated spouses cannot claim a preferential share of a deceased spouse’s estate if there is no Will, just like divorced spouses.

For the purposes of these amendments, spouses are considered "separated" if:

A. At the time of death, they were living apart due to the breakdown of the marriage;

AND

B. One of the following 'separation events' occurred before death:

(i) They lived apart for three years immediately prior to death;
(ii) They entered into a valid separation agreement;
(iii) A court order was issued regarding the marriage breakdown;
(iv) A family arbitration award was made concerning the marriage breakdown.

It’s important to note that these criteria are subject to a transition period. The new separation rules apply only if the separation event occurs on or after January 1, 2022, the date the amendments took effect.

For assistance planning your estate, contact us. 


Comments

Post a Comment

Popular posts from this blog

Can a minor child inherit?

Did you know that in Ontario, a minor child (under 18) is not entitled to directly inherit funds? However, this doesn’t prevent them from being named as beneficiaries. Since minors cannot manage their own property until they reach 18, here’s how it’s typically handled: If there is a Will: The Will can establish a trust and appoint a trustee, who could be the estate trustee (executor) or another individual. This trustee will manage the inheritance according to the Will’s terms. This method provides the most control, allowing the testator to set conditions for when and how funds are distributed. If There Is a Will Without a Trust Provision or No Will: For Amounts Over $35,000: The child's inheritance is paid into court, managed by the Accountant of the Superior Court of Justice , until the child turns 18. Alternatively, the court may appoint a guardian of property to manage the funds. If you need to access funds for the child’s expenses, you can request money through the Office of th...
Read more

What is probate?

  Understanding Probate in Ontario Probate is a term you might come across when dealing with the estate of someone who has died. In Ontario, probate is an important legal process that can impact how an estate is managed and distributed. Here’s a brief explanation of what probate is and why it matters. What is Probate? Probate is the legal process wherein:  1) A deceased person’s Will is validated by the court. It involves confirming that the Will is genuine and that the person named as the executor (the individual responsible for managing the estate) has the legal authority to handle the estate’s affairs.  2) If there is no Will, the court appoints an administrator to manage the estate according to intestacy laws. Why is Probate Necessary? Legal Authority : Probate provides the executor or administrator with official recognition of their role. This legal authority is necessary to deal with banks, transfer property titles, and manage other aspects of the estate. Ensuring V...
Read more