Amendments to the Succession Law Reform Act in 2021 (specifically to section 17 and 43.1) mean that, as of January 1, 2025, spouses who have been living separately and apart due to a breakdown in marriage for three years will be treated the same as divorced spouses. In practical terms:
- Gifts left to the separated spouse in the will are revoked;
- Appointment of the testator’s separated spouse as executor or trustee is also revoked; and
- A separated spouse would not be entitled to intestate inheritance rights.
Here are a few practical tips for lawyers reviewing or drafting wills:
1. Know the law
Understand how the changes apply for specific situations, such as separations that occurred before January 1, 2022, or an intentional gift designation in a will to a separated spouse after separation.
2. Flag potentially invalid gifts and appointments
Ensure clients understand how the legislative changes impact their estate plan, particularly gifts or executor appointments involving their separated spouse.
3. Encourage immediate updates
Clients should be advised not to rely on the default revocation rule. Advise them to update their will immediately after separation to avoid ambiguities or unintended outcomes, such as their estate falling into intestacy or assets distributed in a way they did not intend.
Remind clients that the legislative changes have not impacted:
- Beneficiary designations (e.g., life insurance policies, RRSPs, RRIFs and other registered accounts).
- Power of Attorney for Property or Personal Care.
Encourage them to review and revise/update if necessary.
4. Consider the implications of family law
A separated spouse may still have entitlements under the Family Law Act. Ensure clients understand this risk and explore separation agreements, court orders, or arbitration awards to clarify rights and obligations.
Ask your client if there’s a separation agreement and understand whether it deals with property, gifts, or the right to act as an executor. This can affect the will or provide additional clarity when drafting.
Encourage clients to seek family law advice if this is outside your scope of practice.
5. Document, document, document
Retainer letter: Clearly outline what services you are providing and what you are not (e.g., tax or family law advice). Act within the scope of that retainer.
Proactive intake: Explore marital status as part of your intake process to flag separations, potential separation, or an upcoming separation early.
Thorough notes: Document discussions about separation, the need to revisit and update their estate plan, and the advice provided. Highlight key life changes — such as separation, remarriage, or the birth of a child — that may require clients to update their will and other documents. Checklists are an efficient way to create notes to the file and ensure that all important matters are addressed with each client.
Reporting letter: Be clear and precise as to the service provided, advice given, and any steps the client needs to take on their own (e.g., consulting a family law lawyer).
See PracticePRO’s Domestic Contract Matter Toolkit for additional resources.
By staying proactive, you can help clients avoid unintended consequences and protect yourself from potential liability.