Does Divorce Cancel Your Will in Ontario? Gifts to a Former Spouse

You signed a will while you were married, and now your marriage is ending. Many people assume the will keeps working exactly as written, or that a divorce wipes it out completely. Neither is quite right.

This article explains what Ontario law does to a will when a marriage ends, what happens if you are separated but never divorced, and why it is still worth reviewing your will. It is general information, not advice for your situation.

What a divorce does to an existing will

Under section 17(2) of the Succession Law Reform Act, a divorce or a declaration of nullity made after the will was signed has set effects on the will. Unless the will shows a contrary intention, these things are revoked:

• 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. The rest of the will remains valid. A will that leaves things to children, friends or charities does not fall apart just because one gift fails.

The contrary-intention exception

The automatic cancellation applies unless the will shows a contrary intention. That means a will can be written so a gift to a spouse survives a later divorce. Whether a particular will does that depends on its wording, so it is worth having a lawyer read it if this matters to you.

Separated but not divorced

Many people separate and never finish a divorce. The same cancellation rule also applies on death if the spouses were separated when the person who made the will died. Separated here means they were living separate and apart because of marriage breakdown at death, and one of these is true:

• They had lived apart for three years.
• They had signed a valid separation agreement under the Family Law Act.
• They had a court order settling their affairs.

If none of these applies, the rule for separated spouses does not step in, even if you had been apart for a long time. A separation agreement must be in writing, signed and witnessed to be enforceable.

Older wills and the transition rule

The separated-spouse rule applies even to wills made before it came into force under the Accelerating Access to Justice Act, 2021. There is a catch for the three-year route: the spouses must have begun living apart on or after that date. Someone who separated years before the change cannot rely on the three-year route, though the separation agreement or court order routes are described separately. If your separation straddles that date, ask a lawyer to confirm how it applies.

When a divorce actually takes effect

Timing matters because the rule looks at a divorce made after the will was signed. A divorce takes effect on the 31st day after the day the judgment granting it is made. In limited cases, a court may order an earlier date if special circumstances justify it and the spouses agree and undertake that no appeal will be taken. A certificate confirming the divorce dissolved the marriage is issued on request. In Ontario, the clerk can issue a divorce certificate in Form 36B once the divorce takes effect, after checking the record for appeals.

What to do next

Relying on the automatic rules leaves gaps. For example, a gift that fails may pass to someone you did not expect, and a separated spouse may not fit the listed situations. Practical reasons to update your will during separation and divorce include:

• Name a new executor and trustee, so you are not relying on the former spouse's removal.
• Decide who should receive what, rather than leaving it to the failed-gift result.
• Check whether you still fit within the separated-spouse situations.
• Gather your current will, any separation agreement and court orders before meeting a lawyer.
• Ask about your other documents and designations outside the will, since the will alone may not cover them.

Frequently asked questions