- Under a rule that took effect on January 1, 2022, gifts to a separated spouse in a will, and their appointment as executor, can be revoked if the spouses were separated at death, and whether it applies depends on when you separated.
- Life insurance beneficiary designations are not cancelled automatically on separation, so you generally need to change them yourself.
- An irrevocable beneficiary designation cannot be changed without that beneficiary's consent while they are living.
Separating from your spouse does not end your marriage in law. Until a divorce is granted, many people wonder whether their spouse could still inherit from them, collect their life insurance, or act as their executor.
The answer is different for wills, for deaths without a will, and for life insurance. This article walks through each one, so you can see which documents may need attention. A lawyer can confirm how the rules apply to your dates and paperwork.
Your will after separation: the 2022 rule
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 the testator's death. The testator is the person who made the will.
This means a separated spouse may be removed from your will by law even if you never changed it. Because those gifts and that appointment can fall away, it is worth checking who would receive your property instead and who would act as executor.
The will rule and the matching rule for estates without a will both took effect on January 1, 2022. The no-will rule applies only where the separation event occurred on or after that date, and the timing of your separation matters for the will rule too. If your separation is older, the dates are worth confirming with a lawyer.
What counts as separated for estate purposes
For these rules, separated means living separate and apart because of marriage breakdown at the time of death. On top of that, one of four things must also be true:
- The spouses had been apart for three years immediately before death.
- They had a valid separation agreement.
- A court order had settled their affairs.
- A family arbitration award had been made.
So a couple who split only a few months before a death, with no agreement or order, may not meet the test. In that case the will may still operate in favour of the spouse. This is why waiting for the rule to protect you can be risky.
If there is no will
A matching rule applies when someone dies without a will. A separated spouse, determined 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.
Whether those tests are met on your dates and facts is worth confirming with a lawyer. A will that reflects your current wishes is the most reliable way to control who receives what.
A surviving spouse may also have a claim to equalization. An application for equalization cannot be brought after the earliest of several dates, including six months after the first spouse's death. If a death has occurred, that deadline is worth raising with a lawyer right away. A court can extend a Family Law Act time limit in some cases, but only if there are apparent grounds for relief, the delay was in good faith and no one suffers substantial prejudice.
Life insurance is different
An insured person may designate 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.
In plain terms, if your spouse is named on your policy, they may still be paid unless you change the designation. Updating your will does not change who the insurer pays.
| Situation | What generally applies |
|---|---|
| Spouse named, designation revocable | You can change it |
| Spouse named irrevocably | Cannot be changed without their consent while living |
| Court orders security for support | Court may order the other spouse or a child named irrevocably |
A court may order a spouse who has a life insurance policy to designate the other spouse or a child as beneficiary irrevocably, to secure support. If you pay or receive support, ask a lawyer how this could affect your policy.
What to do next
A separation agreement can deal with these questions in writing. It is unenforceable unless it is in writing, signed by the parties and witnessed. Use this checklist to get started.
- Write down your separation date and any agreement, court order or arbitration award.
- Review your will and decide who should receive your property and act as executor.
- Check each life insurance policy and workplace plan to see who is named and whether the designation is irrevocable.
- Ask the insurer how to change a revocable beneficiary, and keep proof of the change.
- Make sure any separation agreement is in writing, signed and witnessed.
- Speak with a lawyer before changing anything that may be tied to a support obligation or court order.
Frequently asked questions
Is my spouse still my executor if we are separated?
If you were separated at your death under the legal test, the spouse's appointment as executor is revoked under a rule that took effect on January 1, 2022. Whether that rule reaches your situation depends on when you separated, and if the test is not met, the appointment may stand. A will that reflects your current wishes is a way to control who receives your property and who acts for you, and a lawyer can confirm how the rule applies to your situation.
Does my spouse get my life insurance automatically after separation?
Only if they are still the named beneficiary. Ontario law does not automatically cancel an ex-spouse's designation on separation. You generally need to change it yourself, unless it is irrevocable.
What if the beneficiary is irrevocable?
You cannot change or revoke the designation without that beneficiary's consent while they are living. A lawyer can explain your options.
Do these rules apply to common-law partners?
Whether the will and intestacy rules described here reach common-law partners depends on your situation, so it is worth confirming with a lawyer before you rely on them. Whatever your status, it is sensible to review your will and your beneficiary designations after a separation.
Sources
- Family Law Act, R.S.O. 1990, c. F.3 (e-Laws) — Ontario e-Laws
- 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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