Certain amendments to Ontario's Succession Law Reform Act (SLRA) came into force January 1, 2022, which can remove the inheritance entitlement of an individual who is separated from their spouse.
The amendments apply for testate individuals (having a Will), or intestate (dying without a Will). Now, there would have to be an intention expressed in a Will to allow inheritance despite separation.
These changes to the SLRA extend the same treatment to separated spouses (as defined) that formerly applied only upon divorce, eliminating divorced persons' inheritance under an ex-spouse's Will or intestate estate. But it is important to be aware that there are timing criteria, and the new rule does not necessarily apply to all separated spouses.
The changes came from Bill 245 – Accelerating Access to Justice Act, 2021. Section 17 of the SLRA is modified, so that a gift to a "separated spouse" in the Will is revoked, the same as between divorced individuals. And section 43.1 is added, so that intestacy rules of inheritance no longer apply between "separated spouses". Like ex-spouses upon divorce, "separated spouses" are now ineligible for a preferential share of the late spouse's estate where the deceased had no Will.
For testate or intestate persons, the amendments consider spouses to be "separated" if:
- At the time of death, the spouses were living separate and apart due to marriage breakdown;
AND
- Before death, any one of the following 'separation events' events has occurred:
(i) the spouses lived separate and apart due to marriage breakdown for three years immediately prior to death; or
(ii) they entered into a valid separation agreement; or
(iii) a court order was made in the settlement of the marriage breakdown; or
(iv) a family arbitration award was made in the settlement of the marriage breakdown;
However, these criteria are subject to a transition period1. The new separation rules apply only if the before-death separation event occurs on or after January 1, 2022, the date the amendments came into effect2 – not prior to.
This means the new law is not retroactive. It is only forward-looking in application, for future separations. Those who completed one of the listed separation events before January 1, 2022, and not after, are not brought into a new regime.
Plus, there is a further requirement specific to spouses that live apart but do not qualify for any of the other separation events. Not only must the spouses have lived apart for three years immediately preceding death, they must have begun to live separate and apart on or after January 1, 2022.3
If spouses started living apart before 2022, without any other separation event, then this new law does not apply to them. They continue to be beneficiaries of one another's estates. And spouses who started living apart after January 1, 2022 aren't captured by the new law until they reach the three year mark – in January of 2025.
In other words, the law really only applies to people getting court orders, arbitration awards, or separation agreements on or after January 1, 2022 and before one spouses' death; and absent any of those means of separating, people who on or after January 1, 2025 had consistently lived apart for the preceding 3 years before one of them passes away.
Spouses who lived apart since before 2022, or who began after but have not reached the three-year point, can still remove one another's estate entitlements if one of the other three separation events occurs in 2022 or later. A separated individual may also take the initiative to have a new Will made to exclude their spouse if they wanted to. However, it is important to do this in conjunction with a separation agreement to settle any other matters between them. Otherwise, a surviving spouse may have other potential claims against the late spouse's estate, despite being cut out of the Will. But absent these steps, separated spouses who fall outside the timing rules continue to be entitled to what the deceased spouse's Will gives them, or to a preferential share of a spouse's estate if there is no Will.
When the legislative amendments were being considered, the Ontario Bar Association (OBA) noted to the Standing Committee on the Legislative Assembly that "These transition provisions will result in two entirely different applications of the law and results depending on whether the spouses separated before or after the coming into force date, regardless of ... how long the spouses have been separated at the time of one spouse's death".4 This may be considered a strange or even "unfair" outcome as the OBA put it, since it does not matter how long an individual was separated before 2022, if their separation does not fit within the timing criteria. I have had clients who are surprised that, despite being separated for twenty years, they are the primary beneficiary of their late spouse's estate. Or surprised to discover that their separated spouse could still be entitled to something from their estate. Clients may assume their children should be the ones entitled to inherit. But care should be taken by clients – and lawyers – to determine what is actually the case. There are people out there who are separated a long time without finalizing a divorce, and sometimes never even have a separation agreement made, for various reasons. They are therefore still considered as married spouses when determining their estate rights.
The transcripts of the Standing Committee's discussion explains the general rationale for expanding the law for divorced persons to separated couples as well. The changes were intended to "benefit separated spouses who may forget to change their will to reflect their new family arrangement"5, with concern about estates "going to a long-separated spouse"6 rather than to the deceased's children which was more likely the deceased's wish.7
But the Committee's discussion did not specifically address the reason for the transition period. Why did the legislature not bring all separated spouses into the new regime? Why distinguish between spouses who began living apart before versus after the coming-into-force date?
I speculate that the legislators did not want to suddenly impose something new on separated persons. It would have caused disruption to divorces in progress but not finalized. I think the legislature was also cautious about those who were only 'informally' separated – who had been living separate and apart without taking their own steps toward ending their marriage. Likely the legislature recognized a possibility that they may get back together before 3 years was up; therefore their estate entitlements shouldn't change solely on the basis of living apart for a shorter duration. And if spouses living apart a much longer time hadn't taken the step themselves of excluding a spouse from inheriting, the legislature didn't want to abruptly make that decision for them; putting them in the same position as divorced persons. So it seems the transition period was built in to create a safety net.
This gives individuals some time to adjust to the new regime and plan, and to seek advice in this regard. I of course recommend doing just that. Whatever the reason for the quirk in the law, the result is that the old status quo remains for certain people. This makes assessing the estate rights of separated persons a more complicated task. Consideration may be needed as to how the transition period in the SLRA ties into other rights or limitation periods under the SLRA and the Family Law Act.
Footnotes
1 Testacy: SLRA s. 17 (5); Intestacy: SLRA s. 43.1 (3).
2 see Accelerating Access to Justice Act, 2021 (AAJA) Schedule 9, s. 9 (4). January 1, 2022 is the coming-into-force date for AAJA s. 4 (2) of Schedule 9 for testacies, and s. 6 of Schedule 9 for intestacies .
3 Testacy: SLRA s. 17 (4) (a) (i); Intestacy: SLRA s. 43.1 (2) (a) (i).
4 OBA's submission to the Standing Committee on the Legislative Assembly dated March 12, 2021, 'OBA Submission re: Schedules 8 and 9 of Bill 245, Accelerating Access to Justice Act, 2021': https://www.oba.org/CMSPages/GetFile.aspx?guid=16647456-e7df-40ea-a2ce-8f5c41aa4f30
5 Hansard transcript, 42nd Parliament, 1st Session, February 23, 2021, Vol. A, p. 1640, Ms. Lindsey Park.
6 Hansard transcript, 42nd Parliament, 1st Session, February 24, 2021, Vol. A, p. 0940, Mr. Jim McDonell.
7 Supra, note 5.
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