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, a separated spouse loses intestacy rights, including the Preferential Share (the first $350,000), if at your death you had lived apart for 3 years or had a separation agreement, court order or family arbitration award settling your affairs (Succession Law Reform Act, s. 43.1). Otherwise they still inherit.
The Solution:
Since 2022, a valid separation agreement (or 3 years apart) can end a separated spouse's rights under your Will and on intestacy (SLRA ss. 17(3)-(4), 43.1). Signing a new Will on separation is still the safest step.
The $350,000 Risk: What is the Preferential Share?
If you die without a Will (Intestate) while separated and the SLRA s. 43.1 conditions are not met (3 years apart, or a separation agreement, court order or arbitration award), your spouse still 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 stays valid unless, at death, you had lived apart 3 years or had a separation agreement, order or award (SLRA s. 17(3)-(4)).
|
Full Rights.
Ex-spouse gets the $350k Preferential Share unless the same conditions are met (SLRA s. 43.1).
|
|
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.
Do not wait for the divorce papers. Secure your children’s inheritance by updating your Will today.
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.