Does Divorce Cancel a Spouse's Gift Under a Will in Ontario?

A will signed during a marriage often names the spouse as the main beneficiary and as executor. Years later the marriage ends, the will is never updated, and then the person dies. Family members and the named estate trustee are left asking whether the ex-spouse still inherits.

In Ontario the answer for the will itself is usually no, but the rule has limits. It covers gifts in the will, not every asset the person owned. This article explains the rule, the separation exception, and the assets that work differently.

The general rule: divorce after the will is made

Under the Succession Law Reform Act, if a marriage ends by divorce or is declared a nullity after the will is made, gifts to the former spouse are revoked. The former spouse's appointment as executor or trustee is revoked too.

The will is then read as if the former spouse had died first. In practice, that means the gift to the ex-spouse does not take effect, and any backup gift the will contains for that situation becomes important. What happens to the cancelled gift depends on the exact wording of the will, so it is worth having a lawyer read it.

Separated but not divorced

The same revocation applies if the spouses were separated at death, but only where the separation event happened on or after January 1, 2022. The law defines separated in two ways:

• They lived apart because of the breakdown of the marriage for 3 years before death.
• Or they had a separation agreement, court order or family arbitration award, and were still living apart at death.

If neither test is met, for example where a couple had been apart for only a year with no agreement, this rule does not apply on those facts. Whether a particular couple was separated can be disputed, and evidence about where each person lived and why often matters.

Quick comparison

Assets that do not follow the will

The revocation rule is about gifts in a will. Many assets pass by a named beneficiary instead, and those are handled separately. Do not assume a divorce changed them automatically. A lawyer can confirm how a particular designation will be treated.

• Life insurance: the insured can change a beneficiary at any time by a declaration, unless the designation is irrevocable. When a beneficiary is designated, the money does not form part of the estate.
• Irrevocable insurance designations: while that beneficiary is living, the insured cannot change it without their consent, if it was made in the contract or a filed declaration.
• RRSPs and RRIFs outside insurance: a participant can designate a person to receive the benefit on death. A designation in a will is effective only if it relates expressly to a plan. If a will and a plan designation conflict, a later designation revokes an earlier one to the extent they are inconsistent. These plan rules do not apply to a designation under the Insurance Act, such as an insurance-company RRSP or annuity.
• Pensions: under the Pension Benefits Act, which covers Ontario-registered pension plans only, when a member dies before the pension starts, the spouse is entitled to the pre-retirement death benefit ahead of a designated beneficiary. A spouse may waive that benefit by delivering a written waiver to the plan administrator in the approved form, and the waiver can be cancelled by a signed notice before the member dies. A spouse living separate and apart on the date of death has no entitlement. Federally regulated plans and plans in other provinces follow different rules, so it is worth confirming which rules apply to a particular plan.

These assets also avoid probate when a beneficiary is designated. Because these designations sit outside the will, it is worth checking and updating each form after a separation or divorce, and a lawyer can confirm how a particular one is treated.

If there was no will at all

The intestacy rules that give a spouse a share do not apply if the spouses were separated at the time of death. That applies only where the separation event happened on or after January 1, 2022. For an earlier separation, the outcome depends on the facts and is worth confirming with a lawyer.

What to do next

• Find the original will and note its date, then find the date of any divorce, separation agreement or court order.
• List every account, policy, pension and registered plan and check who is named as beneficiary on each.
• Before distributing anything, speak with a lawyer if an ex-spouse or separated spouse could be affected.
• Remember that an estate trustee collects the assets, pays taxes and debts, and distributes the rest to those entitled.
• If you are still alive and separated, update your beneficiary forms and your will.

Frequently asked questions