Will Your Ex Get Everything If You Die?

After separation, most individuals are cautious in systematizing their finances.  Unfortunately, they are not as thorough in managing an estate plan for when they die, which indicates that a former spouse can gain more than they would have received through family court merely because the other spouse passes. 

By Marian Grande Updated: October 07, 2022Categories: Considering Divorce, COVID & Divorce, Financial Issues, Health & Wellbeing

Most of you know that the end of a marriage or common-law relationship does not automatically sever all ties between partners.

After separation, most individuals are cautious in systematizing their finances.

Will Your Ex Get Everything If You Die?

Unfortunately, they are not as thorough in managing an estate plan for when they die, which indicates that a former spouse can gain more than they would have received through family court merely because the other spouse passes.

After a married or common law couple separates, each party should prioritize creating a will, whether or not they had one in marriage.

Contrary to popular belief, a separation does not automatically revoke a will.   A spouse’s will remains to be valid until the first of one of the following:

• The spouses have lived separate and apart for three years;
• The divorce has taken effect;
• The spouses execute a separation agreement;
• There is a court order addressing the issues arising from the separation; and
• There is a family arbitration award addressing the problems arising from the separation.

What if your ex dies intestate?

Dying intestate means that someone has left no instructions on how they would like their property to be divided and allocated at the time of death.

Ontario’s Succession Law Reform Act sets out how the estate is distributed in cases of intestacy.

The Act states that if you pass away without a will, your assets will be allocated in the following ways:

• If you are married with children:  A surviving spouse in Ontario is automatically entitled to $350,000.00 as their preferential share of their spouse’s estate if that spouse dies without a will.
• The Ontario government changed the automatic entitlement from $200,000.00 to $350,000.00 on February 16, 2021, to the Succession Law Reform Act (SLRA), which governs what happens in an intestacy.  If anything is left over, it is equally divided between your spouse and your children.
• If you are a single parent with children:  The children each inherit an equal portion of your assets.  If any of them have died, that child’s descendants (i.e. grandchildren) will inherit their share.
• Married with no children:  Your spouse is entitled to everything as long as you are legally married (common-law is not included).
• No spouse and children: Your assets are inherited by your parents.
• No spouse, children, or parents: Your assets are given to your siblings, nieces, and nephews if your siblings predeceased you.
• No spouse, children, parents, or siblings: All other next of kin inherit an equal portion of your estate.
• With no living next of kin: Assets, estate, and property all go to the Ontario government.

Exclusively blood relatives, including children born outside of marriage and legally adopted children, can inherit when someone dies without a will.

Half-blood relatives will share equally with whole-blood relatives.

Remember that common-law spouses are not treated the same as married spouses under the law and do not automatically have the same property rights. In Ontario, if a common-law spouse dies intestate, the surviving spouse will not inherit any part of the estate. However, depending on the facts and circumstances, a surviving common-law spouse can file a claim against the estate in two ways: a dependency claim or a claim for unjust enrichment.

If your divorce has not yet taken effect, you may still have a claim to the deceased’s estate.

That being said, if there was a separation agreement in place at the time of death, you should examine it to see if there was any responsibility to provide for the other party post-divorce, such as spousal support.

A separation agreement is an excellent first step to voiding a spouse as a beneficiary, but it is equally vital to ensure your estate plan is revised after separating.

The area of wills and estates can become complex.  You are urged to obtain legal advice to ensure your rights are protected.