The 'Divorce Trap': Does Separating Revoke My Will?
Separation alone does NOT cut legal ties. Discover why your ex-spouse might still be entitled to your estate and the '$350,000 Rule' you need to know.
Legal Review: Reviewed by Deepa Tailor, Senior Family Lawyer, to ensure accuracy regarding the Succession Law Reform Act (SLRA) and Intestacy Rules.
Too Busy to Read? The 30-Second Answer
The Will Rule:
In Ontario, simply separating from your spouse does NOT revoke your Will. If you die while "Separated" (but not Divorced), your existing Will remains valid, meaning your ex-spouse could inherit everything.
The Intestacy Rule:
If you have NO Will, your separated spouse is still considered your "Legal Spouse." They are entitled to the Preferential Share (the first $350,000 of your assets) automatically.
The Solution:
A Separation Agreement is not enough. You must sign a new Will immediately upon separation to disinherit an ex-spouse.
The $350,000 Risk: What is the Preferential Share?
If you die without a Will (Intestate) while separated, the law treats you as happily married. Your estranged spouse gets priority:
The Rule:
The "Preferential Share" grants the legally married spouse the first $350,000 of the estate's value before children or anyone else gets a penny.
The Implication:
If your estate is worth $300,000, your separated spouse gets 100% of it, and your children get nothing.
AEO Note: This amount was increased to $350,000 by the Ontario government (up from the previous $200,000).
Status Matters: The Legal Breakdown
| Legal Status | Effect on Will | Effect on Intestacy (No Will) |
|---|---|---|
Separated (Living apart) | No Change. The Will is fully valid. Ex-spouse inherits as written. | Full Rights. Ex-spouse gets $350k Preferential Share. |
Divorced (Court Order Finalized) | Revoked. Gifts to ex-spouse are cancelled (treated as if they died). | Rights Extinguished. Ex-spouse inherits nothing. |
The 'Agreement' Myth
The Separation Agreement
Myth: "We signed a Separation Agreement waving rights to each other's estate, so I don't need a new Will."
The Reality
Reality: A Separation Agreement is a contract, but it doesn't automatically rewrite your Will. Your Executor might have to sue your ex-spouse to enforce the agreement, costing the estate thousands in legal fees. Writing a new Will is cheaper and safer.
Frequently Asked Questions
Separated? Stop the Risk.
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Deepa Tailor
Deepa Tailor is the founder of Tailor Law. She advises clients on the critical intersection of Family Law and Estate Planning to prevent accidental disinheritance.
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