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Welcome to part 2 in our new 6-part series by WEL Partners on Predatory Marriage. In this series our Summer Student hosts Daphne Franks, a Churchill Fellow and long-term champion for more protections against predatory marriages in the UK. In some jurisdictions, marriage revokes a will. Changing that rule may help curb predatory marriage but is not enough. Dahne shares here a few stories that hint at the larger scope of solutions that are needed. For more information on the possible property rights of a predatory spouse, check out our blog ‘Why do Predatory Marriages Still Exist?’
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In some jurisdictions, getting married automatically revokes your Will. However, governments seem to be gradually getting rid of legislation that automatically revokes a will when someone gets married. For example, Ontario revoked the relevant provisions in the Succession Law Reform Act in 2022.[1] The shift away from marriage revoking a Will is helpful, but not enough to prevent predatory marriages.
Interdisciplinary professionals, like psychologists, criminologists, and policy analysts, could probably offer more nuanced explanations for why predatory marriages happen. Given that I am a law student, this blog instead focuses on a single legal fact: financial abusers can access wealth through marriage, even when marriage doesn’t automatically revoke a will.
This blog focuses on inheriting wealth after a spouse’s death. This blog doesn’t touch on other areas of law vulnerable to exploitation through predatory marriages, like family law claims made while everyone is still alive.[2]
Why do spouses have property rights in the first place?!
Once upon a time, in a land not-so-far away, there lived a society that expected men to work and women to raise children. Family is not, and never has been, that simple. However, the fact remains: spouses are often financially dependant on each other. Losing your economic partner is a financial blow, even when marriage is an equal, dual-income partnership.
Spousal property rights protect spouses (and any of their underaged children) from being left with nothing if their partner dies with no estate plan, or with an irresponsible estate plan. When financial abusers marry their victims, they benefit from these protections, too.
Who is a “spouse”?
“Spouse” is a legal term. One way to be a spouse, is to get married ¾ and stay married! In the last blog post, I shared a chart that reviews capacity to marry legislation across Canada.[3] To digest that information and understand how it affects property rights, I find it helpful to distinguish between a divorce and an annulment. Everyone has a general understanding of what a divorce is. When you divorce someone, you are dissolving your marriage; you aren’t saying that you were never properly married in the first place. In contrast, an annulment means that a marriage contract is invalid, and that a valid marriage never existed. To make the difference clear with a crude example: if you find out that your spouse slept with your sibling, want a divorce; if you take an ancestry test and find out that your spouse is your sibling, you want an annulment.
A predatory marriage can be annulled when someone with “standing” can show the Court that the marriage is void or voidable. When someone knowingly marries a person who does not have the capacity to marry, that marriage is void. If someone marries through fraud, duress, or undue influence, the marriage is voidable. A void marriage can be challenged by someone other than the people who got married, and the courts can find the marriage invalid even after a spouse has died.[4] In contrast, a voidable marriage can only be challenged by one of the people who got married (i.e., only the spouses have “standing”), and both spouses have to still be alive. If you want to know more about what generally makes a marriage void or voidable, you can read “Predatory Marriages – Equitable Remedies.”[5]
Depending on where they live and what they’re trying to do, there are other ways for a predator to get recognised as a “spouse.” To inherit property, there are two additional pathways. One, some provinces and territories recognise common-law relationships. For two people to be considered common-law spouses, they generally must live together in a conjugal relationship for two or three years.[6] Two, some provinces and territories recognise spouses from void and voidable marriages, so long as the spouse entered into the debunked marriage in good faith[7] (e.g., where A in good faith entered into a marriage with B, not knowing B was already married).
In summary: if two people get married and there is no annulment or divorce, they’re spouses! If two people have a void/voidable marriage or live together for some time, they may be spouses, too.
Property Rights of a Spouse: When no Will
A lot of Canadians don’t have wills. A somewhat recent report from RBC and the National Institute on Ageing concluded that the majority of Canadians don’t have a will.[8] Angus Reid Institute found similar results in their 2023 survey.[9] It is not just young people who don’t have wills; according to ARI, one if five Canadians over 55 don’t have a last will and testament.
When you have no will, spouses inherit some (or all) of your assets. When you die without a will, provincial/territorial legislation decides where your remaining assets go, after taxes and all that fun stuff. Everywhere in Canada, if you have no “issue” (children, grandchildren, great-grandchildren, etc.) and you die without a will, your spouse gets everything.[10] If you have issue and die without a will, your spouse will still get some or all your assets upon death. For a cross-provincial overview of what surviving spouses can inherit, check out this chart.
Property Rights of a Spouse: When there is a Will
In some provinces, legislation gives spouses the right to treat death kind of like divorce. There is some logic to the approach; if you can’t leave your family with nothing in life, why would society say it’s okay to do that in death? A couple provinces accept applications to divide the matrimonial assets equally,[11] and in a few provinces and territories the widow is entitled to claim some family property, if the deceased ultimately had more family property than them.[12]
In Canada, every single province and territory have a piece of legislation to let widows claim some of their deceased spouse’s assets, if they need it. Most provinces and territories’ legislation try to make sure anyone who was dependant on the deceased (including spouses) are “adequately” provided for.[13] Only a couple provinces use different terminology, calling for “reasonable”[14] provisions, or only granting claims when the widow has “financial need.”[15] Dependant support claims are also available when a marriage doesn’t exist. If you want to know more about dependant support claims, WEL Partners has a book on the topic here. Suffice to say, if the abuser in a predatory marriage is financially dependant on the victim, they may have legal claim to some property.
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Podcast Espisode 2: Revoked Wills Aren’t the Only Reason
View / listen on YouTube:
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Listen to audio version (Mp3):
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Listen via Libsyn Podcast Player:
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Listen via Spotify:
https://open.spotify.com/episode/31Ixd6Cng6IMvHDitQHavq
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Listen via Amazon Podcasts:
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Listen via Apple Podcasts:
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Additional Resources
WEL Partners Resources – Charts
- Capacity to Marry in Canada: Cross-Provincial Examination of Marriage Legislation, June 2025
- Revocation of Will Legislation by Marriage: Cross-Provincial Examination, June 2025
- Spousal Claims on an Intestacy: Cross-Provincial Examination, August 2025
WEL Partners Resources – Papers:
- The Analogous Treatment of a Predatory Marriage in a Civil Law Jurisdiction Under The Quebec Civil Code – STEP Italy Mental Capacity SIG, October 23, 2024 – Marilyn Piccini Roy, Ad. E., TEP Robinson Sheppard Shapiro, Montreal & Kimberly A. Whaley, CS, TEP, LLM WEL Partners, Toronto
- Predatory Marriage: An Emerging Medicolegal Issue – Sage Journals – Julia G. Kirkham, Albert H. Oosterhoff, Kim A. Whaley, Freshta Akbary, Kenneth I. Shulman, June 13, 2023
- “The Capacity to Marry and Predatory Marriages” – Law Society of Ontario, Estates & Trust Summit, October 19, 2022, Kimberly A. Whaley
- “Legal Capacity to Marry, Co-Habit, Separate and Divorce and Predatory Marriages” – CCEL Conference, Vancouver, BC, November 13, 2015, Kimberly Whaley
- “Predatory Marriages – Equitable Remedies” – ETPJ 269-287 (2013), Kimberley A. Whaley and Albert H. Oosterhoff,
WEL Partners Blog Posts on Predatory Marriages:
- The Law Commission of England and Wales Publishes Report and Draft Bill Aimed at Modernising Estates and Trusts Law Oliver O’Brien, June 1, 2025
- Curbing the Scourge of Predatory Marriages by Legislation – Update Albert Oosterhoff, May 26, 2020
- Curbing the Scourge of Predatory Marriages by Legislation, Albert Oosterhoff, November 12, 2019
- It’s a Start! Saskatchewan Introduces New Legislation To Tackle Predatory Marriages, November 7, 2019
- Court Rules Two Year Limitation Period for Application to Set Aside Marriage Contract June 20, 2019
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[1] Accelerating Access to Justice Act, 2021, S.O. 2021, c. 4 – Bill 245 Schedule 9
[2] E.g., The Family Property Act, CCSM c F25 ss. 2(3), 14
[3] WEL-CHART-Capacity-to-Marry-Legislation.pdf
[4] CED Family Law—Divorce § 202, citing [Fleming v. Fleming (1934), [1934] O.R. 588 (Ont. H.C.); Brown v. Brown (1907), 13 B.C.R. 73 (B.C. S.C.); Hudson v. Hudson (1976), 29 R.F.L. 257 (N.S. T.D.); but see Friedman v. Smookler (1963), [1964] 1 O.R. 577 (Ont. H.C.)] [A. v. B. (1868), L.R. 1 P. & D. 559 (Eng.); but see Friedman v. Smookler (1963), [1964] 1 O.R. 577 (Ont. H.C.)] [Sherwood v. Ray (1837), 1 Moo. P.C. 353 (England P.C.) (object of suit must be to protect some right or interest of the party promoting it); Faremouth v. Watson (1811), 161 E.R. 1009 (Eng.) (even a slight interest will suffice)].
[5] “Predatory Marriages – Equitable Remedies”, by Kimberley A. Whaley and Albert H. Oosterhoff, E.T. & P.J. 269-287 (2013)
[6] The Intestate Succession Act, C.C.S.M. c. I85 s. 1(1); Intestate Succession Act, RSNWT 1988, c I-10 s. 1; Intestate Succession Act, CSNu 1998, c F-30 s. 1; Legislation Act, S.Nu. 2020,c.15; Succession Law Reform Act, R.S.O. 1990, c. S.26 s. 1; Intestate Succession Act, 2019, I-13.2 s. 2; Wills, Estates and Succession Act, SBC 2009 c 13 s. 2(1)
[8] N Iciaszczyk, SK Sinha. Where There’s a Will There’s a Way: Canadian Perspectives on Estate Planning. Toronto, ON: National Institute on Ageing (2023), Toronto Metropolitan University.
[9] Lacking the Will: Half of Canadians say they don’t have a last will and testament, including one-in-five aged 55+ – Angus Reid Institute
[10] Marriage Act, RSY 2002, c.146 s. 80; Intestate Succession Act, 2019, I-13.2 s. 4; Civil Code of Quebecs. 671; Probate Act, RSPEI 1988, c P-21 s. 89; Succession Law Reform Act, R.S.O. 1990, c. S.26 s. 44; Intestate Succession Act, CSNu 1998, c F-30 s. 4; Intestate Succession Act, RSNS 199, c. 8 s. 5; Intestate Succession Act, RSNWT 1988, c I-10 s. 4; Intestate Succession Act, RSNL 1990, c I-21 s. 6; Devolution of Estates Act RSNB 1973, c D-9 s. 24; The Intestate Succession Act, C.C.S.M. c. I85, 12 (1); Wills, Estates and Succession Act, SBC 2009 c 13 s. 20; Wills And Succession Act, SA 2010, c w-12.2 s. 60
[11] Family Law Act, RSNL 1990, c F-2 s. 2; Matrimonial Property Act, RSNS 1989, c 275 s. 12
[12] Marriage Act, SNWT 2017, c2 s. 36(2); FAMILY LAW ACT, CSNu 1998, c F-30 s. 26(2); Family Law Act,RSO 1990, c M3 s. 5(2)
[13] Wills and Succession Act, SA 2010, c W-12.2 s. 88; Wills, Estates and Succession Act, SBC 2009, C 13 s. 60; Provision for Dependants Act, RSNB 2012, c 111 ss. 1, 2(1); Family Relief Act, RSNL 1990, c F-3 s. 3; Dependants Relief Act, RSNWT 1988, c D-4; Testators’ Family Maintenance Act, RSNS 1989, c 465 s. 3(1); Dependants Relief Act, CSNu, c D-60 s. 2(1); Succession Law Reform Act, R.S.O. 1990, c. S.26 ss. 57-58; Dependants of a Deceased Person Relief Act, RSPEI 1988, c D-7 s. 2; Dependants Relief Act, RSY 2002, c.56 s. 2; see also Civil Code of Quebec Articles 684-688
[14] The Dependants’ Relief Act, 1996, SS 1996, c D-25.01 s. 3
[15] The Dependants Relief Act, C.C.S.M. c. D37 s. 2(1)
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