The Role of Wills in Prenuptial Agreements in Ontario

What a Marriage Contract Does

A marriage contract addresses financial rights and obligations between spouses in the event of separation or divorce. It deals with property division, spousal support, and related matters. Importantly, a marriage contract takes effect during life — it governs what happens if the marriage ends while both parties are alive.

What a Will Does

A will is an estate planning document that sets out how your property is to be distributed after your death. It is effective only on death. A will can name beneficiaries for your estate, appoint a guardian for minor children, and deal with other matters that arise on death.

How Marriage and Wills Interact in Ontario

In Ontario, marriage used to automatically revoke an existing will. Changes to the law have altered this rule for wills made on or after January 1, 2022 — marriage no longer automatically revokes a will made after that date. However, it is still important to review and update your will when you marry or enter into a cohabitation agreement, as your circumstances and intentions may have changed.

Can a Marriage Contract Address What Happens at Death?

A marriage contract can address spousal inheritance rights to some extent. Under Ontario’s Family Law Act, a surviving spouse has the right to elect to receive an equalization payment instead of taking under the deceased’s will or on intestacy. A marriage contract can waive or limit this right, which may be an important consideration for individuals with children from a prior relationship.

Why You Need Both Documents

A marriage contract deals with your rights in the event of separation. A will deals with the distribution of your estate on death. Neither document fully substitutes for the other. If you have a marriage contract but no will, your estate may be distributed in ways you did not intend. If you have a will but no marriage contract, your rights on separation may not be protected as you wished.

Beneficiary Designations and Other Planning Considerations

Beyond wills and marriage contracts, comprehensive planning requires attention to beneficiary designations on RRSPs, TFSAs, life insurance, and pensions. These assets pass outside of your will and are governed by their own designation forms. Reviewing and updating these designations in conjunction with your will and marriage contract is essential.

Key Takeaway

A marriage contract and a will work together — they are complementary, not interchangeable. Anyone entering into a marriage contract should also work with their lawyer to review or prepare a will and ensure all estate planning documents are aligned.