Often, Family Law intersects with other areas of law. There have been several amendments to the Succession Law Reform Act (SLRA) that have significant consequences to separated spouses.
Changes made to sections 17 and 43.1 of the SLRA, came into effect as of January 1, 2022 impact separated spouses. If the spouses have been living separate and apart due to a breakdown in marriage for a period of three years or more, they have entered into a valid separation agreement, or either a Court Order or family arbitration award was made in settlement of their affairs arising from the breakdown of their marriage, then they will be treated as if they were divorced, so that:
- Gifts left to the separated spouse in the decease’s Will are revoked;
- Appointment of the testator’s separated spouse as Executor or Trustee in the decease’s Will is also revoked; and
- A separated spouse is not entitled to inheritance rights if the deceased dies without a Will (intestate).
Formerly #1 and #2 above only applied to divorced spouses, not separated spouses. The changes to the SLRA are a dramatic shift, including now that a surviving separated spouse is no longer entitled to share in the estate of the deceased if they die intestate (without a Will). It should be noted that these changes are not retroactive, in that they apply on a go forward basis to spouses that separate after January 1, 2022.
The Family Law Act (FLA) was amended to align with the amendments to the SLRA, by including section 6(21) to reflect that if a surviving spouse has no entitlement in an intestacy pursuant to section 43.1 of the SLRA, section 6 of the FLA shall reflect the entitlement under Part II of the SLRA as zero.
These changes to the legislation do not impact beneficiary designations made to separated spouse on life insurance policies, RRSPs, RRIFs or Power of Attorney for Property or Personal care.
After January 1, 2022 marriage no longer revokes a Will
Another change to the SLRA, which took effect on January 1, 2022, is that a Will made before marriage is valid. Section 16 previously provided that a person’s Will was revoked upon marriage, if the Will was signed before their marriage. Section 16 was repealed on January 16, 2022, for marriages that take place after January 1, 2022. If you married after January 1, 2022 your Will signed before this date remains valid. If the marriage occurred on or before December 31, 2021, then the old law remains in place so the Will is revoked if signed before the marriage.
It is crucial for parties going through a separation and/or divorce understand the impact of these changes on their family law case, especially as they negotiate and enter into a Separation Agreement or a settlement at Court.
It is also imperative for separated spouses to review, revise and/or update their Will, to avoid unintended outcomes, such as having their assets being distributed in a way that they did not intent, or if a separated spouse still intends to give testamentary gifts to their spouse then they need to update their Will to ensure the gifts are not revoked due to their separation.
Do you require assistance with a family law related issue?
Andrea Cooley, Counsel, is a senior lawyer in Siskinds’ Family Law Department. If you would like to discuss any family law issue, including your separation, divorce, decision-making responsibility, parenting schedule, adoption, division of property, separation or cohabitating agreements, she can be reached at [email protected] or by phone at 519.550.7782.