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New Marriage Terminates Prior Will

A will made before a marriage is automatically revoked upon the subsequent marriage, unless the will was made in contemplation of the marriage (ie. Specifically referred to the marriage and your intention that the will remain valid after the marriage).


New common law spouse – no will, no change

The mere fact that there is a new (even longstanding) common law spouse does not affect the rights or entitlements of a previous married spouse until there is a divorce.  Unless there is divorce, a new will, or changes of beneficiary designations, it is quite likely that a separated but not divorce ex-spouse will have a valid claim.

Will Not Revoked By Divorce

A will is not automatically revoked by a divorce.  Instead, a will made before a divorce is read as if your ex-spouse died immediately prior to your death, unless the will specifically addresses the divorce. This means that the ex-spouse will not be an executor or beneficiary of a will made before the divorce (unless you specifically addressed divorce in the will). Generally, if you get divorced, you should immediately do a new will and revoke all prior wills.

Takeaway: always make a new will after divorce.

If you wish to have your ex-spouse share in your estate, or play a role as estate trustee, you absolutely must make a will after the divorce that expressly addresses this intention.

Wills not changed by separation

A will is not affected by a separation without divorce of the two spouses, even if the separation has lasted years and even if you have a new common law partner of years.  If you separate and do not divorce, and your old will names your ex- as the executor and beneficiary, they will inherit.  If you have no will, and married and never divorced, your ex- will inherit and be the first right to be the estate trustee.  If this is not your intention, you must revoke the old will (by destruction, or better, by making a new will).

Takeaway: always make a new will after any permanent separation.

Beneficiary designations: not changed by separation or divorce

Be careful about beneficiary designations on pensions, insurance, RRIFs, RRSPs and TFSAs: they are not affected by separation or by divorce.  You must change them, either with the financial institution or by clear language in a new will made after separation.

A new will does not override old obligations

Support obligations – whether spousal support or child support – are a very important debt due.  Unless they are paid in full and terminate on death, they must be settled in full by the estate before any amount is paid to any beneficiary.  Recall: debts must be paid in full by the estate trustee before any distribution to beneficiaries.

This applies to both accrued unpaid support at death, and, the value of support owed after death.

A separate issue is the payment of any life insurance that was required to backstop support obligations (often required in separation agreements).

Rights of spouses and ex-spouses and dependents

It is not wise to ignore your spouse, former spouse, or dependents in your will.

Your married spouse has the right, on your death to elect:

  • To receive from your estate in accordance with your will (for instance, if your will gives everything to your spouse), or
  • Under the Family Law Act, to receive from your estate as if you had been divorced immediately prior to your death.

In other words, if you give less in your will to your married spouse than they would be entitled to in a divorce, then it is likely that they will in effect ‘challenge the will’ and make the election that permits them to receive as if you were divorced.

Note: a common law spouse does not have this right in Ontario.  If you have no will, it is quite possible that your common law spouse will inherit nothing.  Learn more here.

If you owe a duty to support a former spouse, then this duty likely forms a debt due by the estate.  If it does, it must be paid before there is any estate available for distribution to beneficiaries (for instance, your new spouse or children) – “all debts must be paid before any bequests”.  The precise nature of your debts and the consequences for your estate will depend on the terms of any agreement with your former spouse or Court order.

In Ontario, you have a duty to make adequate provision for certain dependents in your will, such as a dependent spouse (married or common law).  If you do not, they can make a claim against the estate for support.  Note that in order for someone to qualify for support, they must have been dependent on you financially prior to your death.  This is a complex area of the law – if you want to reduce or eliminate what someone receives from your estate and they are dependent on you, get good legal advice.

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