Does Divorce Revoke Your Will in Ontario? Gifts and Executors

If you signed a will while married and have since divorced, you may wonder whether your former spouse still inherits or still acts as your executor. Ontario has a specific rule on this, and it does not cancel your whole will.

This article explains what the rule changes, what it leaves alone, and how it applies to people who are separated but not divorced. It is general information, and a lawyer can confirm how it applies to your will.

The short answer

Under the Succession Law Reform Act, a divorce or a declaration of nullity made after the will is signed revokes certain parts of the will that relate to the former spouse, unless the will shows a contrary intention. The rest of the will remains valid.

In other words, divorce does not wipe out your will. It removes your former spouse from it, as if they were no longer part of your plans.

What is cancelled after a divorce

Unless the will shows a contrary intention, a divorce or declaration of nullity made after the will is signed revokes the following:

• Any gift to the former spouse.
• Any appointment of the former spouse as executor or trustee.
• Any power of appointment given to the former spouse.

The will is then read as if the former spouse died before you. What happens to a gift that no longer goes to your former spouse depends on how the rest of the will is written, for example whether it names a backup beneficiary. That is worth reviewing with a lawyer.

Separated but not yet divorced

The same rule can apply on death even if you never divorced. It applies if you and your spouse were separated when you died. For this purpose, you were separated if one of the following is true:

• You were living separate and apart because of marriage breakdown at death and had lived apart for three years.
• You had signed a valid separation agreement under the Family Law Act.
• You had a court order settling your affairs.

This 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 your separation is recent or the dates are unclear, a lawyer can confirm which route may apply.

Limits of the rule

The rule gives way if the will shows a contrary intention. So if you wanted your former spouse to keep a gift or remain executor, the will's wording matters, and clear wording is safer than relying on the default.

The rule also applies only to your will. Other arrangements, such as beneficiary designations on accounts or insurance, follow their own documents and rules, so check each one separately. If you are separated but not divorced and have not signed a separation agreement or lived apart long enough, the will may still treat your spouse as a spouse.

What to do next

• Find your current will and note when it was signed.
• List every place your former spouse is named: gifts, executor, trustee, guardian or other roles.
• Check beneficiary designations on accounts, pensions and insurance.
• Decide who you want to inherit and who you want as executor.
• Have a lawyer review the will and prepare a new one or an update, rather than relying on the default rule.

Frequently asked questions