What Are the Inheritance Rules if A Spouse Dies While Separated But Not Divorced?



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 SLRA was revised to revoke gifts to a "separated spouse" in a Will, mirroring the rules for divorced individuals. 

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. 

If you have specific concerns or a complex situation, consult an Ontario lawyer specializing in estate law. 

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