Making Sure Your Marriage Contract and Your Will Actually Agree in Ontario

Many people entering a second marriage take the sensible step of signing a marriage contract to address property expectations up front. Years later, they draft a will separately — sometimes with a different lawyer, sometimes without ever pulling the marriage contract back out. A marriage contract and will alignment problem is what happens next: two documents that were each carefully drafted, but that no longer agree with each other.

Here is where the mismatch usually shows up, and how to catch it before it becomes a dispute.

Two Different Documents, Two Different Purposes

A marriage contract is a family law document that generally addresses property rights between spouses — often including how property will be treated on separation or death. A will is a succession law document that says who inherits your estate and who administers it. They come from different areas of law, drafted for different purposes, but in a second marriage they frequently need to say consistent things about the same assets.

Where the Conflict Usually Shows Up

• The contract addresses a right the will doesn't account for. For example, a marriage contract may deal with a spouse's rights on death, while the will is drafted as though those rights were never discussed.
• The contract says one spouse keeps certain property, but the will gives that same property to someone else. This kind of direct contradiction is more common than people expect, especially when the two documents were signed years apart.
• One document gets updated after a life change and the other doesn't. A new home, a new child, or a second remarriage often triggers a will update — but the marriage contract, signed once at the outset, is easy to forget.

Why the Mismatch Matters

When a marriage contract and a will point in different directions, the people left behind — your spouse, your children, or other beneficiaries — can end up in a dispute about which document actually controls a given asset. That is exactly the kind of avoidable conflict that careful, coordinated planning is meant to prevent, and it can be costly and slow to sort out after the fact.

The Family Law Act Overlay Doesn't Disappear

Even with a marriage contract in place, the general default under the Family Law Act is still sitting in the background: a surviving married spouse can typically elect, within six months of death, to take an equalization payment instead of what the will provides. A marriage contract that clearly and properly addresses this ahead of time is what actually changes that default. A contract that discusses property in general terms, without specifically turning its mind to death and estate rights, may leave that default rule fully in place — will or no will.

A Coordination Checklist

• [ ] Pull out your marriage contract and your current will together, side by side
• [ ] Confirm any property named in the contract is treated the same way in the will
• [ ] Confirm the contract specifically addresses estate and equalization rights, if that was the intent — general property language alone may not be enough
• [ ] Update both documents together after any major life event, not just one of them
• [ ] Have a lawyer review both documents together, not each in isolation

Who Should Review Both Documents

Ideally, a family lawyer familiar with the marriage contract and a wills & estates lawyer familiar with the will should review both together, since the two areas of law interact directly whenever a second marriage is involved. Reviewing either document alone risks missing exactly the kind of conflict described above.

Frequently asked questions