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Separation And Divorce

Separation and divorce

Divorce or separation before death?

Will or no Will?

Big difference.

It is very important to clearly identify the marital state of the deceased prior to death.

If the deceased was formally married, and then formally divorced, certain rules apply.  These rules also now apply to parties who were ‘separated’ at the time of death, if the definition of separation in the Succession Law Reform Act (the “SLRA”) is met.

The SLRA definition of ‘separated is

  • the parties had lived separate and apart at the time of death because of dissolution of the marriage for at least three years, or,
  • the parties lived separate and apart at the time of death because of dissolution of the marriage and
    • a Court order or arbitration award with respect to their affairs dealing with the dissolution of the marriage had been granted

Different rules apply to

  • common law spouses never formally married; and
  • informal separations for married couples that do not meet the SLRA definition above.

Married, make a will, then separated or divorced prior to death

In Ontario, if the deceased was divorced or separated (as defined above) after the will is made, then the will is read as if the divorced/separated spouse died before the testator:

  • Any appointment of the former spouse as executor is voided; and
  • All gifts to the former spouse are voided.

Note that the former spouse may be a creditor of the e

 

state pursuant to any support agreement, and, may be entitled to claim support as a dependent of the deceased.

Married not ‘separated’ will in place

If the SLRA definition of ‘separation’ set out above is not met, then even if the parties are living apart the will remains valid and enforceable.  The spouse will have the option to take under the Will, or, to elect to take as if the couples was divorced the day before death.  And, the spouse may make a dependent support claim.

Married, no will, separated or divorced

If the parties were separated (see above definition) or divorced and there was no will, then the former spouse will not have the rights of a spouse to apply to act as estate trustee or to be a beneficiary of the estate set out under the SLRA.

Of course, the former spouse may still have rights as a creditor of the estate (for instance for support orders), and for rights under family law (divorce), or a dependent support claim.

Common law, will in place then separated

If the separation meets the test of ‘separation’ set out above, the Will will be read as if the former spouse pre-deceased the testator.

If the formal test of separation is not met, the former spouse will inherit in accordance with the Will, and the executorship will follow the Will.

Common law, no will then separated

The former common law spouse will not be entitled to act as estate trustee and will not have any right to inherit any of the estate of the deceased.

The former common law spouse may have claims as a creditor and for spousal support and dependent support.

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