A requirement in the amendment was fulfilled on January 1
Separated spouses are being treated as divorced at the time of death following the fulfillment of a requirement in Ontario’s Succession Law Reform Act on January 1, reported Investment Executive.
The amendment was first introduced in January 1, 2022. According to Fasken Martineau DuMoulin LLP associate Latoya Brown, it stipulates that if an individual who was separated from their spouse died without a will, the spouse would not be entitled to a preferential share in the individual’s property.
The law defines a couple as separated if they have lived apart for at least three years due to marriage problems at the time of a spouse’s death; if a valid separation agreement was in place; if a court-ordered settlement agreement was in place; or if a family arbitration award had been handed down.
The mandate that couples should have lived separately for at least three years took effect on the day the amendment was introduced; thus, the three-year period was reached on January 1. This simplifies the estate administration process given that “separated spouses living apart for three years as of Jan. 1 may not need a separation agreement, court order or arbitration order to obtain a separated spouse status,” Brown wrote in a blog post snippet published by Investment Executive.
Fasken partner Corina Weigl urged individuals to prioritize updating wills and powers of attorney if they separate from their spouses.
“You don’t want to wait for the three-year window to kick in. You want to change your will to remove benefits you’ve originally provided to your now separated spouse, or if you’ve appointed him or her as an executor or trustee under your will,” Weigl said in a statement published by Investment Executive.
She recommended considering contracts like marriage agreements in situations such as second marriages and marriages of heirs from rich families – especially since children coming from wealth may bring property or financial benefits provided by their parents into the marriage or common-law relationship.
“Couples who come into a relationship where they’ve got equal earning capacity — it may not warrant a contract,” Weigl noted.
