Introduction

The recent amendments to Ontario’s Succession Law Reform Act (SLRA), specifically Sections 17[1] and 43.1[2], have introduced significant changes to the inheritance rights of separated spouses. Although this amendment came into effect as of January 1, 2022, Section 43.1[3] requires the spouses to have lived separate and apart for a period of 3 years starting the day the amendment came into force. Thus, the full effect of this provision came into effect as of January 1, 2025. Section 17[4] now revokes gifts and appointments to a spouse upon separation, not just divorce[5]. Section 43.1[6] removes intestate inheritance rights for separated spouses. These changes, introduced by the Accelerating Access to Justice Act, 2021[7] are notable and of importance to individuals who are separated or considering separation in Ontario, to estates and estate trustees administering estates.

Changes to Inheritance Rights

The amendments to Sections 17 and 43.1 of the Succession Law Reform Act (SLRA), have been effective since January 1, 2025, and affect the inheritance rights of separated spouses. A spouse is considered separated if having lived apart for three (3) years, having entered a separation agreement, or is under a court order or arbitration award. The result of these changes mean that separated spouses are treated similarly to divorced spouses in inheritance matters.

Under the new legislation, if an individual dies intestate, their separated spouse will no longer automatically inherit a share of the estate. Notably, this marks a significant departure from previous legislation, where only a formal divorce would prevent a spouse from inheriting. [8]

Criteria for Separation

Both Sections 17 and 43.1 introduce the concept of a “separated spouse.” For a spouse to be considered “separated” under the new rules, specific criteria must be met as provided for under Section 43.1[9] . The spouses must have been living apart due to a marriage breakdown, and at least one of the following conditions must apply:

a)  before the person’s death,

(i)  they lived separate and apart as a result of the breakdown of their marriage for a period of three (3) years, if the period immediately preceded the death,

(ii)  they entered into an agreement that is a valid separation agreement under Part IV of the Family Law Act,

(iii)  a court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage, or

(iv)  a family arbitration award was made under the Arbitration Act, 1991 with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage; and[10]

(b)  at the time of the person’s death, they were living separate and apart as a result of the breakdown of their marriage.[11]

Application of Amendment

This amendment is that it is not retroactive. As such, it applies only to separations occurring on or after January 1, 2022. Spouses who began living apart before this date, without any other qualifying separation event, remain entitled to inherit under the previous regime.[12] Notably, this was confirmed recently in the decision of, Mcdowell v. McDowell[13] 2024, where the court clarified that the amendments could not apply to spouses who separated in 2020 since the amendments came into force in 2022.

Implications for Separated Spouses

Spouses who have lived apart since before 2022, or who began living apart after this date, but have not reached the three (3) -year threshold, can still remove each other’s estate entitlements if one of the other separation events occurs in 2022 or later. It is always advisable for separated individuals to create a new Will to exclude their spouse if that is the intention, ideally in conjunction with the separation agreement. Without these steps, a surviving spouse may still have claims not contemplated, against their estate, despite being excluded from the Will. [14] [15]

Concluding Comments

These amendments to the SLRA represent a significant shift in the treatment of separated spouses in Ontario’s estate law and estate trustees and lawyers advising them must be aware.

—

[1] Succession Law Reform Act, RSO 1990, c S.26, s 17

[2] Succession Law Reform Act, RSO 1990, c. S26, s 43.1

[3] Ibid

[4] Supra Note 1, SLRA s 17

[5] Exception on termination of marriage

(2) Except when a contrary intention appears by the will, where, after the testator makes a will, his or her marriage is terminated by a judgment absolute of divorce or is declared a nullity,

(a)  a devise or bequest of a beneficial interest in property to his or her former spouse;

(b)  an appointment of his or her former spouse as executor or trustee; and

(c)  the conferring of a general or special power of appointment on his or her former spouse, are revoked and the will shall be construed as if the former spouse had predeceased the testator.  R.S.O. 1990, c. S.26, s. 17 (2).

Exception on separation

(3) Subsection (2) applies, with necessary modifications, on the death of the testator, if the spouses are separated at the time of the testator’s death, as determined under subsection (4). 2021, c. 4, Sched. 9, s. 4 (2).

[6] Supra Note 2, SLRA s. 43.1

[7] Bill 245, Accelerating Access to Justice Act, 2021, Schedule 9

[8] Peter Welsh “Separated Spouses and Intestacy: important changes coming in 2025” (2025), online: Smart Wills <Separated Spouses and Intestacy: Important Changes Coming in 2025 : Smart Wills>

[9] Supra Note 2, SLRA s. 43.1

[10] Supra Note 2, SLRA s 43.1

[11] 2021, c. 4, Sched. 9, s. 6.

[12] Supra Note 2, s 43.1(2)(a)(i), 43.1(3)

[13] McDowell v. McDowell, 2024 ONSC 2301

[14] Sorbara LAW  “Separated Spouses and Inheritance Rights” (2024), online: SorbaraLaw < Separated Spouses and Inheritance Rights>