Ontario's 2022 will changes: marriage no longer revokes a will, separated spouses lose out
How Ontario's 1 January 2022 amendments changed wills after marriage and separation, intestacy for separated spouses and court validation.
Since 1 January 2022, three changes to Ontario's Succession Law Reform Act (SLRA) have applied: marriage no longer revokes an existing will (s. 16 was repealed), a separated spouse is treated as if they had died first for gifts and appointments in the will (s. 17(3)–(5)) and loses intestacy rights (s. 43.1) once the couple meets the statutory test of separation, and the court can validate a will that was not properly signed (s. 21.1). The changes came from the Accelerating Access to Justice Act, 2021. If you married, separated or made a will around 2022, your plan may now work differently from how you expected.
Part of the overview of estate and family law costs. General information, not legal advice.
Change 1: marriage no longer revokes a will
Before 2022, getting married automatically revoked an earlier Ontario will unless it was expressly made in contemplation of that marriage. Many people never knew this, and spouses married late in life sometimes died with a revoked will, leaving the new spouse to take under the intestacy rules.
The old s. 16 was repealed effective 1 January 2022, and s. 15(a), which listed marriage as a revoking event, was repealed at the same time. Now an Ontario will survives a marriage.
What this means in practice:
- A person who marries in or after 2022 keeps the will made before the marriage, including any gifts to children from an earlier relationship or to a former partner.
- The new spouse is not cut out completely: as a married spouse they can elect equalization under the Family Law Act within six months of death, and can make a dependant's support claim under SLRA Part V.
- If the marriage took place before 2022, the old rule applied at the time of the marriage, so a will made before a pre-2022 marriage was automatically revoked unless an exception applied, such as a will made in contemplation of that marriage (CLEO's Steps to Justice). Have an older will checked rather than assuming.
Illustrative example. Ana made a will in 2019 leaving everything to her two adult children. She married Paul in 2023 and died in 2026 without changing it. The 2019 will stands; Paul inherits nothing under it, but he may elect equalization or claim support. Had they married in 2020, the 2019 will would generally have been revoked and Paul would take under the intestacy rules.
Change 2: separated spouses are treated as predeceased
Previously only a divorce (or annulment) revoked gifts to a former spouse. Separated spouses who never divorced often inherited under an old will. Now, under s. 17(3)–(4), gifts to the spouse, their appointment as executor or trustee, and powers of appointment given to them are revoked, and the will is read as if the spouse had died before the testator, if both of these apply:
(a) Before death, one of these happened:
- they lived separate and apart because of the breakdown of their marriage for three years immediately before the death;
- they signed a valid separation agreement under Part IV of the Family Law Act;
- a court made an order settling their affairs arising from the breakdown of the marriage; or
- a family arbitration award was made on those issues; and
(b) at the time of death they were still living separate and apart because of the breakdown of the marriage.
The rule yields to a contrary intention in the will. If you want a separated spouse to keep a gift, say so expressly.
Transition rules
The new rule applies only if the triggering event happened on or after 1 January 2022. For the three-year option, the couple must also have started living apart on or after that date, so the earliest a separation alone can trigger it is January 2025.
Change 3: intestacy and separated spouses (s. 43.1)
The same test now applies when there is no will. A spouse who is separated within the meaning of s. 43.1 does not receive the preferential share or a share of the residue under SLRA Part II. The estate goes to the children or other relatives instead.
| Situation at death | Under the will | No will (intestacy) |
|---|---|---|
| Married, living together | Gifts to spouse stand | Spouse takes preferential share plus a share of the rest |
| Separated under 3 years, no agreement or order | Gifts stand | Spouse still inherits |
| Separated, signed separation agreement (2022 or later) | Gifts revoked unless will says otherwise | Spouse excluded |
| Separated 3+ years, separation began 2022 or later | Gifts revoked unless will says otherwise | Spouse excluded |
| Divorced | Gifts revoked (s. 17(2)) | Not a spouse |
A separated spouse who is excluded may still have rights outside Part II: an equalization claim under the Family Law Act (the six-month limitation after death applies), a support claim under SLRA Part V if they were a dependant, and any rights under a separation agreement or court order.
Change 4: court validation (s. 21.1)
For deaths on or after 1 January 2022, the Superior Court of Justice may order that a document that was not properly executed is valid as a will, or as a revocation, alteration or revival of a will, if it sets out the deceased's testamentary intentions. The power cannot be used for electronic wills. Courts look for evidence that the document records a deliberate, fixed and final intention about the disposal of property at death, not just notes or a draft.
What to review now
- Married since 2022 with an older will? It still applies. Decide whether you want a new will that provides for your spouse.
- Married before 2022 with an older will made before the marriage? Check whether it was revoked by that marriage.
- Separated? Don't rely on the automatic rule. Update your will, beneficiary designations (RRSP, RRIF, TFSA, pension, life insurance) and powers of attorney now; s. 17 does not change designations made outside the will.
- Executor named a spouse? If separated, name a new executor.
FAQ
Does the separation rule apply to my RRSP beneficiary designation?
Not automatically. Section 17 deals with gifts and appointments in a will. Designations under SLRA Part III and insurance law follow their own rules, so update them directly with the plan or insurer.
We separated in 2021. Does the new rule apply?
Only if a triggering event, such as a separation agreement or court order, happened on or after 1 January 2022. The three-year option needs a separation that began in 2022 or later.
Can my separated spouse still be my attorney under a power of attorney?
The 2022 changes did not revoke powers of attorney. Revoke and replace them in writing, signed before two witnesses.
Sources
- Ontario e-Laws — Succession Law Reform Act, ss. 15–17, 21.1, 43.1 (download the Word version if the page does not load)
- Steps to Justice — wills, separation and estates in Ontario
- CLEO — plain-language legal information for Ontario
- Legal Aid Ontario — eligibility and family law help
