Wills and Estate Planning After Separation in Ontario: What You Need to Do

What Happens to Your Will When You Separate?

In Ontario, separation alone does not automatically affect a will. Your existing will remains valid after separation, which means that if you die while legally married but separated, your separated spouse may still be entitled to receive property under your will — or to elect against the will in favour of an equalization claim under the Family Law Act.

What Happens to Your Will When You Divorce?

For wills made before January 1, 2022, divorce automatically revoked any bequest to or appointment of the former spouse as executor. For wills made on or after January 1, 2022, divorce revokes gifts to and appointments of the former spouse, treating the former spouse as though they had died before the testator. In both cases, updating your will promptly after divorce is still advisable.

Update Your Will After Separation

The safest approach is to make a new will as soon as possible after separation, clearly reflecting your current intentions. Until you update your will, the old provisions remain in effect (with limited exceptions). A new will should name new beneficiaries, appoint a new executor, and address guardianship of minor children if applicable.

Review and Update Beneficiary Designations

Beneficiary designations on RRSPs, TFSAs, pensions, and life insurance policies are separate from your will and are not automatically revoked by separation or divorce. If your former spouse is named as beneficiary on these accounts, they will receive the funds directly regardless of what your will says. Review and update these designations promptly.

Powers of Attorney

You likely named your spouse as your attorney for property and for personal care in your powers of attorney. After separation, you will generally want to revoke these documents and appoint a trusted friend or family member instead. A separated spouse retains the authority granted in a power of attorney unless the document is revoked.

Children’s Guardianship

Your will should appoint a guardian for your minor children in the event of your death. After separation, you may wish to reconsider your choice of guardian. Be aware that in most cases, if the other parent is living, they will have the right to take custody of the children regardless of your will’s nomination, but the nomination remains important in case both parents die.

Post-Divorce Estate Planning Checklist

• Execute a new will reflecting your current wishes.
• Update or revoke powers of attorney for property and personal care.
• Review and update all beneficiary designations.
• Review life insurance coverage and ownership.
• Consider establishing a trust for minor children.
• Review joint ownership of any remaining assets.
• Consult with a tax advisor about the estate planning implications of your separation.