Three years ago, Ontario’s Succession Law Reform Act (SLRA) was amended so that separated spouses are treated as divorced at the time of death. As of Jan. 1, the change is in full effect, potentially simplifying estate administration in some instances and also serving as a reminder that clients should keep their estate plans current.
The amendment to the SLRA, from Jan. 1, 2022, means that if a person dies without a will and they were separated at the time, the person’s spouse won’t be entitled to a preferential share in their property, Latoya Brown, an associate with Fasken Martineau DuMoulin LLP in Toronto, wrote in a recent blog post.
A couple is considered separated if they lived apart, due to marriage breakdown, at the time of the death for three years or more; they had a valid separation agreement; they had a court-ordered settlement agreement; or a family arbitration award had been made.
The amendment requires that the couple lived apart for three years beginning the day the amendment came into force, Brown wrote, and those three years have passed as of New Year’s Day.
As such, “administering a separated spouse’s estate may become one step simpler, as separated spouses living apart for three years as of Jan. 1 may not need a separation agreement, court order or arbitration order to obtain a separated spouse status,” Brown wrote.
Corina Weigl, a partner with Fasken Martineau DuMoulin LLP in Toronto, said that when clients separate, updating their wills, along with powers of attorney, should still be at the top of their checklists.
“If you separate from your married spouse or your common-law spouse, you want to change your will immediately; you don’t want to wait for the three-year window to kick in,” Weigl said in an interview. “You want to change your will to remove benefits you’ve originally provided to your now separated spouse, or if you’ve appointed him or her as an executor or trustee under your will.”
More generally, Weigl noted that contracts, such as marriage agreements, can be an important planning consideration in certain situations.
“Couples who come into a relationship where they’ve got equal earning capacity — it may not warrant a contract,” Weigl said. However, contracts are advised in the case of second marriages and marriages of children from wealthy families.
Regarding the latter, a contract makes sense, Weigl said, because they may be walking into the marriage or common-law relationship with property or financial benefits provided by their parents.