The intricate web of legalities surrounding estate distribution becomes even more complex when individuals have experienced marital changes. Understanding the nuances of testamentary laws is crucial for ensuring that the final wishes of the deceased are carried out appropriately. In this post, we delve into the diverse scenarios that unfold when a testator has been divorced, separated, or remarried.
- Formal Divorce or Separation: The SLRA Framework
When a testator was formally married, divorced, or separated, the Succession Law Reform Act (SLRA) plays a pivotal role. The SLRA defines separation as living apart due to the dissolution of marriage for at least three years or being separated with a legal arrangement in place. Different rules apply based on the nature of the separation.
- Married, Then Separated or Divorced Prior to Death: Will Implications
In Ontario, if a person was divorced or separated as defined by the SLRA after making a will, the will is interpreted as if the ex-spouse predeceased the testator. This results in the annulment of any appointments of the former spouse as an executor and voiding all gifts designated to them. However, financial claims may still be valid based on support agreements.
- Married, No Separation: Will Validity
If the SLRA definition of separation is not met, even if the parties live apart, the will remains valid. The spouse has the option to accept under the will or elect to inherit as if divorced the day before the death, with the possibility of making a dependent support claim.
- Married, No Will, Separated or Divorced: Limited Rights
In cases where there’s no will and the parties were separated or divorced, the former spouse may not have the rights granted to a spouse under the SLRA. However, rights as a creditor, especially for support orders, and claims under family law may still be applicable.
- Common Law Scenarios: Separation and Inheritance
For common-law spouses, the treatment varies based on whether there’s a will in place. If separated according to the SLRA, the former spouse is considered to have predeceased the testator. Without a will, the former common-law spouse might not have rights as an estate trustee or beneficiary but could pursue claims as a creditor or for spousal and dependent support.
- Will Then Marriage: Changes in Legislation
Unlike the previous law in Ontario, which automatically revoked a will upon marriage, the legislation has evolved. A marriage no longer automatically nullifies an existing will unless expressly stipulated in contemplation of marriage.
Navigating the intricacies of estate distribution in the context of marital changes requires a nuanced understanding of legal frameworks. Whether divorced, separated, or remarried, individuals should carefully review and update their wills to ensure their final wishes align with the ever-evolving legal landscape.