Married or Not, Ready or Not: The New Year Brings Changes to the Succession Law Reform Act
As of January 1, 2022, important changes have been made to Ontario’s Succession Law Reform Act which impact estate planning for married, separated and non-married spouses. These changes are as follows:
- Marriages taking place on or after January 1, 2022 do NOT automatically revoke an existing will, which would have before December 31, 2021. The existing will is still in full force and effect unless it is specifically revoked and/or a new will is made. So essentially, your marriage does not change anything unless you revoke the existing will and/or make a new will.
- Married spouses who have been separated for at least 3 years before the death of their spouse (provided the death occurred after December 31, 2021) or have an executed separation agreement, are treated as if they are DIVORCED. If you are treated as divorced, you will not be entitled to any benefits under the will of your deceased spouse even though you were named as an estate trustee or a beneficiary in their will (this does not apply if the separated spouse is named as a beneficiary of a life insurance policy or registered retirement plan since those designations would have had to have been revoked by the deceased spouse before their death not to apply). If there is no will, the married spouse will not be entitled to share in the deceased spouse’s will, unless they were already named in the testator’s will before marriage.
Another change reflects the importance of understanding the true intentions of the testator. Even if a will is not executed properly, it will be deemed to be valid if it can be demonstrated that it reflects the true will of the testator. Hopefully many wills can now be saved from being deemed invalid, which would ultimately result in the testator having “died intestate”, which is another can of worms.
These changes are NOT RETROACTIVE. If you were married before January 1, 2022, you are caught under the previous rules. Your marriage revoked your previous will so technically you do not have a will unless you have made a new will in contemplation of marriage before actually getting married OR after you were married.
If you are getting married this year and you have a will that will continues in effect. If you want to include your new spouse, you need to make a NEW will!