- A divorce made after a will is signed revokes gifts to the former spouse and their appointment as executor or trustee, unless the will shows a contrary intention.
- The rest of the will remains valid.
- The same rule can apply on death if the spouses were separated but not divorced, under conditions set out in the Succession Law Reform Act.
If you signed a will while married and later divorced, you may wonder whether your former spouse still inherits or still acts as your executor. Many people never update their will after a separation, and the law has rules that step in.
This article explains how Ontario's Succession Law Reform Act treats a former spouse in a will, including the rule for spouses who separated but never divorced. A lawyer can confirm how it applies to your documents.
What happens to the will when you divorce
A divorce does not cancel your whole will. Unless the will shows a contrary intention, a divorce or declaration of nullity made after the will is signed revokes any gift to the former spouse, any appointment of the former spouse as executor or trustee, and any power of appointment given to them. The will is read as if the former spouse died before the testator.
The rest of the will remains valid. Gifts to other people, such as children or friends, stay in place.
What the rule covers
- Gifts left to the former spouse.
- The former spouse's appointment as executor or trustee.
- Any power of appointment given to the former spouse.
The will is read as if the former spouse died before you. What then happens to that share depends on the wording of your will, so it is worth having it reviewed.
A divorce is an order officially ending a valid marriage, and only legally married couples can divorce. A divorce takes effect on the 31st day after the day the judgment granting it is made, although the court may order an earlier date if special circumstances justify it and the spouses agree and undertake that no appeal will be taken, or any appeal has been abandoned. Once it takes effect, a divorce under the Divorce Act dissolves the marriage and has legal effect throughout Canada, and a certificate that the divorce dissolved the marriage is issued on request.
Keeping that certificate with your estate papers can make it easier for whoever handles your affairs to show when the marriage ended. Whether it is needed in your situation is something a lawyer can confirm.
Separated but not divorced
The rule can also apply when spouses never divorced. The same revocation applies on death if the spouses were separated when the testator died. The law treats spouses as separated if they were living separate and apart because of marriage breakdown at death and either had lived apart for three years, had signed a valid Family Law Act separation agreement, or had a court order settling their affairs.
There is a transition rule. The separated-spouse rule applies even to wills made before it came into force under the Accelerating Access to Justice Act, 2021. However, for the three-year-separation route, the spouses must have begun living apart on or after that date.
If you are relying on a separation agreement, the form of the agreement matters. A separation agreement is a domestic contract and is unenforceable unless it is made in writing, signed by the parties and witnessed.
| Situation | Effect on gifts to the former spouse |
|---|---|
| Divorce made after the will was signed | Revoked unless the will shows a contrary intention |
| Separated at death, with three years apart, a separation agreement or a court order | Same rule applies |
| Separated for a shorter time with no agreement or order | The rule does not apply on the conditions above; confirm with a lawyer |
Why you should still update your will
Relying on the automatic rule can leave gaps. If your former spouse was your only executor, you may need someone else named. If you want a former spouse to keep a gift, the will needs to show a contrary intention, and that is something to word carefully.
Your will is not the only document that may name your former spouse. Beneficiary forms on accounts, insurance or pensions are worth checking one by one, and how each is treated depends on its own terms, so it is worth confirming with a lawyer.
A new will also lets you say clearly who should receive what and who should act for you, rather than leaving your family to work out how the automatic rule applies to older wording.
What to do next
- Find your current will and note the date it was signed.
- List every place your former spouse is named: gifts, executor, trustee, powers of attorney and beneficiary forms.
- Confirm the date your divorce took effect or how long you have been separated.
- Decide who should now act as executor and who should receive what.
- Have a lawyer prepare a new will so that your wishes do not depend on the automatic rule.
Frequently asked questions
Does my divorce cancel my entire will?
No. A divorce revokes gifts to the former spouse, their appointment as executor or trustee, and any power of appointment given to them, and the rest of the will remains valid.
What if my will says my former spouse should still inherit?
The revocation applies unless the will shows a contrary intention. How a particular will is worded is a matter for a lawyer to review.
I am separated but not divorced. Is my spouse still in my will?
Not necessarily. The rule also applies on death if the spouses were separated, meaning living separate and apart because of marriage breakdown and either apart for three years, party to a valid Family Law Act separation agreement, or subject to a court order settling their affairs.
Does the separated-spouse rule apply to older wills?
Yes. It applies even to wills made before it came into force under the Accelerating Access to Justice Act, 2021, but for the three-year route the spouses must have begun living apart on or after that date.
Sources
- Divorce Act, s. 12(1) — Justice Laws (federal)
- Department of Justice Canada – About Divorce and Separation — justice.gc.ca
- Family Law Act, ss. 54, 55(1) — Ontario e-Laws
- Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 17(2) — Ontario e-Laws
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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