- Since January 1, 2022, gifts to a spouse in a will, and the spouse's appointment as executor, are revoked if the spouses were separated at death, as the law defines that word.
- Life insurance beneficiary designations are not automatically cancelled when you separate, so an ex-spouse can stay named until you change it.
- Until the legal test for being separated is met, review your will and your insurance designations rather than assuming separation has changed them.
You have separated from your spouse but have not divorced. You may be wondering whether your spouse could still inherit from you, or act as your executor, if you died tomorrow.
The answer depends on a specific legal test, and on what kind of document you are asking about. A will, a death without a will, and a life insurance policy are each treated differently in Ontario.
The rule for wills since January 1, 2022
Under Ontario's Succession Law Reform Act, gifts to a spouse in a will, and the spouse's appointment as executor, are revoked if the spouses were separated at the testator's death. The testator is the person who made the will.
So separation does not cancel the whole will. The rest of the will generally stays as written, and only what concerns the spouse is affected. A lawyer can confirm how this works in your situation.
What counts as separated
For these rules, separated means living separate and apart at death because of the breakdown of the marriage, plus one of four further things. Both parts must be met.
- Three years apart immediately before death.
- A valid separation agreement.
- A court order settling the spouses' affairs.
- A family arbitration award.
A separation agreement can be made by two people who cohabited and are living separate and apart. It is unenforceable unless it is in writing, signed by the parties and witnessed. An informal verbal understanding is therefore not enough to count.
The gap is important. If you separated recently and have no agreement, order or award, you may not yet meet the test, and your spouse could still take under your will.
If there is no will
A matching rule applies when someone dies without a will. A separated spouse, decided by the same tests, is not entitled to a share of the other spouse's estate on intestacy where the separation event occurred on or after January 1, 2022.
These rules apply only where the separation event happened on or after that date. If your separation was earlier, the outcome may differ, so get legal advice.
Life insurance works differently
An insured person may name a beneficiary in the policy or by a declaration, and can generally change it. Ontario law does not automatically freeze or cancel an ex-spouse's beneficiary designation on separation. If your spouse is still named, they may still be paid.
| Document | Effect of separation |
|---|---|
| Will | Gifts to a spouse and the spouse as executor are revoked only if the separated test is met |
| No will | A separated spouse, by the same tests, has no share where the separation event was on or after January 1, 2022 |
| Life insurance | Not automatically cancelled |
There is an exception. If a beneficiary was designated irrevocably, you cannot change it without that beneficiary's consent while they are living. A court may also order a spouse to designate the other spouse or a child as irrevocable beneficiary to secure support.
Deadlines and next steps
If a spouse dies, an application for equalization cannot be brought after six months from the first spouse's death, if that is the earliest of the limit dates. A court can extend a time limit in some cases, but do not count on that.
- Read your current will and note every gift or role given to your spouse.
- Check the beneficiary on each life insurance policy and whether any designation is irrevocable.
- Ask a lawyer whether to update your will now, rather than waiting for the separated test to be met.
- If you reach an agreement, make sure it is in writing, signed and witnessed.
- Contact a Family Law Information Centre, which gives free information about separation and related issues.
Frequently asked questions
Does separating automatically change my will?
Not on its own. Gifts to your spouse and their appointment as executor are revoked only if you were separated at death as the law defines it. Until then, the will may apply as written.
Is a verbal separation agreement enough?
No. A separation agreement is unenforceable unless it is in writing, signed by the parties and witnessed.
Will my ex-spouse still get my life insurance?
If they are still the named beneficiary, possibly. Separation does not automatically cancel a beneficiary designation. You can generally change it unless it is irrevocable.
Does the rule apply if we separated before 2022?
The no-will rule applies where the separation event occurred on or after January 1, 2022, and the will rules took effect that date. For an earlier separation, ask a lawyer how it applies.
Sources
- Family Law Act, R.S.O. 1990, c. F.3 (e-Laws) — Ontario e-Laws
- Ontario.ca – Family Law Information Centres — ontario.ca
- Insurance Act, R.S.O. 1990, c. I.8 (e-Laws) — Ontario e-Laws
- Succession Law Reform Act, R.S.O. 1990, c. S.26 (e-Laws) — 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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