Separation and Your Will in Ontario | Agile Legal Solutions

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Separation, divorce and your will: the rule since 2022

Before 2022, separating from a spouse did nothing to a will. A husband who moved out, signed a separation agreement and started a new life could die years later with his estranged wife still named as his sole beneficiary and estate trustee, because only a divorce changed the will. The Accelerating Access to Justice Act, 2021 changed that. Since January 1, 2022, section 17 of the Succession Law Reform Act (SLRA) treats certain separated spouses the same way it has long treated divorced ones.

The rule is narrower than many people expect, so it is worth reading slowly. It matters most when someone updates their wills and powers of attorney after a relationship ends.

Here is what section 17 does, in order:

The will stays in force. Section 17(1) says a will is not revoked just because circumstances change. Separation does not cancel the will, and nor does divorce.
Gifts and appointments to the former spouse fall away. On divorce or annulment, section 17(2) revokes any gift to the former spouse, any appointment of them as executor or trustee, and any power of appointment given to them. The will is then read as if the former spouse had died before you.
Separated spouses are now included, if a trigger is met. Section 17(3) applies the same treatment on your death if you and your spouse were separated at that time, as defined in section 17(4).
The rest of the will carries on. Everyone else named in the will keeps their gifts. Alternates you named, such as a backup executor or a gift over to your children, step in where the will allows.
Your will can say otherwise. Section 17(2) starts with “except when a contrary intention appears by the will“. If you genuinely want a former spouse to inherit, the will can say so in clear words.

When you count as separated for your will

Under section 17(4), you are treated as separated at the time of your death only if two things are both true. First, before your death, at least one of these happened:

You lived separate and apart because the marriage broke down, for three years immediately before your death.
You signed a valid separation agreement under Part IV of the Family Law Act.
A court made an order dealing with your rights and obligations in settling your affairs after the breakdown of the marriage.
A family arbitration award under the Arbitration Act, 1991 did the same.

Second, at the time of your death, you were still living separate and apart because of the breakdown of the marriage. A couple who reconcile and move back in together are not separated for this purpose, even if they signed an agreement years earlier.

There is also a transition rule in section 17(5). The trigger event has to happen on or after January 1, 2022. For the three-year route, you must also have started living apart on or after that date. A couple who separated in 2019 with no agreement and no order are therefore not caught by the three-year route, however long they have lived apart.

How each change in a relationship affects an Ontario will
Situation	Effect on gifts to that spouse or partner	Effect on naming them executor	Where the rule is
Divorce or annulment	Revoked; read as if they died before you	Revoked	SLRA s. 17(2)
Separated, with a valid separation agreement signed on or after Jan. 1, 2022, still apart at death	Revoked; read as if they died before you	Revoked	SLRA s. 17(3), (4)(a)(ii), (5)
Separated, with a court order or family arbitration award made on or after Jan. 1, 2022, still apart at death	Revoked	Revoked	SLRA s. 17(3), (4)(a)(iii) and (iv)
Separated three years or more, starting on or after Jan. 1, 2022, still apart at death	Revoked	Revoked	SLRA s. 17(3), (4)(a)(i), (5)
Separated less than three years, no agreement, order or award	Unchanged; they still inherit	Unchanged	SLRA s. 17(1)
Common-law couple who split up	Unchanged; section 17 deals only with married spouses	Unchanged	SLRA s. 1(1) and Family Law Act s. 1(1) (“spouse“)

What changes the answer

Married or common-law

In Part I of the SLRA, “spouse” has the meaning in section 1 of the Family Law Act: two people who are married to each other (including a void or voidable marriage entered in good faith). Common-law partners are not spouses for this rule. If your will leaves everything to a common-law partner and you split up, nothing in section 17 removes that gift. Only a new will does.

Dying without a will while separated

The same four triggers apply when there is no will. Section 43.1 says the intestacy rules that give a spouse a share do not apply to a spouse you were separated from at death, using the same test and the same 2022 transition. We cover the full intestacy order in who inherits if you die without a will in Ontario.

The Family Law Act still matters

A separated spouse who is still legally married remains a “spouse” under the Family Law Act. When a spouse dies, section 5(2) can give the survivor an equalization payment, and section 6 makes the survivor choose between that and what they receive under the will or on intestacy. The election must be filed with the Estate Registrar for Ontario within six months of the death (section 6(10)), and section 6(14) bars distributing the estate in those six months without the survivor’s written consent or a court order. Losing gifts under the will does not by itself end those family law rights. That is a question for family law advice in your own situation.

Wording in the will

Because section 17 yields to “a contrary intention” in the will, the exact drafting matters. A will that says a gift to your spouse stands “whether or not we are separated or divorced” can show that intention. A will that simply names your spouse does not.

Powers of attorney are a separate document

Section 17 is about wills. It does not touch a continuing power of attorney for property or a power of attorney for personal care. Under section 12 of the Substitute Decisions Act, 1992, a continuing power of attorney ends only on listed events, such as the attorney’s death or resignation, a court-appointed guardian, your signing a new one (unless you say you want several), or a written revocation signed the same way as the original. Separation is not on that list. If your spouse is the person you named, called your attorney, they keep that authority until you change it. Our article on the two kinds of power of attorney explains what each covers.

Designations made outside the will

Section 17 speaks to gifts in a will. Beneficiary designations on an RRSP, RRIF, TFSA, pension or life insurance policy are often made on the plan’s own forms, and joint accounts pass by survivorship. Check each of them separately when a relationship ends, rather than assuming the will change covers them. Our page on how beneficiary designations work explains how to change them.

Example

For example, imagine Daniel, who lives in Richmond Hill, signed a will in 2019 leaving everything to his wife Sofia and naming her as estate trustee, with his two children as alternate beneficiaries and his brother Marc as alternate estate trustee. Daniel and Sofia separate in March 2024. They do not sign a separation agreement, and nobody goes to court.

If Daniel dies in 2025, none of the four triggers is met: they have lived apart for less than three years, and there is no agreement, order or award. Sofia still inherits everything and is still the estate trustee. If instead they had signed a valid separation agreement in June 2024, and were still apart when he died, section 17(3) would treat Sofia as if she had died before Daniel. His children would inherit as the alternates, and Marc would apply to be estate trustee. Either way, a new will signed the week he moved out would have put Daniel’s own choice on paper, without depending on which trigger applied.

Common mistakes after a separation

Assuming separation cancelled the will. It does not. At most, it removes the former spouse’s gifts and appointments, and only if a trigger applies.
Waiting for the divorce to update anything. Divorces can take a long time. Until a trigger applies, the old will still benefits your spouse.
Forgetting the alternates. If your spouse drops out, the will’s alternates take over. If there are none, part of the estate may pass as if you had no will. Our page on what makes a will valid in Ontario explains why a new will needs to be signed correctly, too.
Leaving your spouse as your attorney. Separation does not end a power of attorney. People often update the will and forget the documents that apply while they are alive.
Ignoring designations and joint property. A former spouse can still receive an RRSP, insurance or a joint account that passes outside the will.
Treating a common-law split like a divorce. Section 17 does not apply to common-law partners at all.

If you remarry later, keep in mind that since 2022 a new marriage also no longer revokes your will. We explain that change in does getting married cancel your will in Ontario.

What to do this week

Find your will and both powers of attorney, and note who you named in each role.
Write down the date you separated and whether there is a signed separation agreement, a court order or an arbitration award.
List your RRSP, RRIF, TFSA, pension and insurance designations, and every joint account or jointly owned property.
Decide who you now want as estate trustee, beneficiary, guardian for your children and attorney.
If your children are young, think about whether their inheritance should be held in a trust rather than paid to them, or to anyone on their behalf, outright.
Make a new will and new powers of attorney rather than relying on section 17 to tidy up the old ones. A first consultation takes 30 minutes, by video or in person, and you can request one here.

Frequently asked questions

Does separation revoke my whole will in Ontario?

No. Section 17(1) of the SLRA says a will is not revoked because circumstances change. Separation can only remove what the will gives your separated spouse, and only when one of the section 17(4) triggers applies at your death.

We separated before 2022. Does the new rule apply to us?

Only if a trigger happened on or after January 1, 2022, such as a separation agreement signed or a court order made after that date. The three-year route applies only if you began living apart on or after January 1, 2022 (section 17(5)).

Can my separated spouse still be my estate trustee?

Yes, unless a trigger applies at your death, in which case section 17 revokes their appointment as executor or trustee and the will is read as if they had died first. Your alternate estate trustee would then apply for the Certificate of Appointment of Estate Trustee, if one is needed.

What if we get back together?

Section 17(4)(b) requires that you were living separate and apart at the time of death. If you have reconciled and are living together again, you are not separated for this rule, even if an old agreement exists.

Does divorce change my power of attorney?

No. Section 17 applies to wills only. A power of attorney naming a former spouse stays valid until you revoke it in writing, signed the same way as the original, or sign a new one.

Can I keep my former spouse in my will on purpose?

Yes. Section 17(2) yields to a contrary intention that appears in the will. If you want a gift to survive separation or divorce, the will should say so expressly, ideally in a new will made after the separation.

For a wider view of how a will fits with the rest of a plan, our estate planning page covers blended families and second marriages as well.

Sources

This page is general information about Ontario law, not legal advice for your situation. It reflects the law as of October 25, 2026.

What happens to your will if you separate in Ontario?