Separated Spouses in Intestacy

A separated spouse generally does NOT inherit under Ontario's intestacy rules, regardless of when the separation began.

Enacted January 1, 2022

1. The New General Rule: Separated Spouses Do Not Inherit

Section 43.1 of Ontario's Succession Law Reform Act (SLRA) now excludes separated spouses from inheriting when someone dies without a will (intestate). The purpose is to treat separated spouses the same as divorced spouses regarding estate distribution—they receive nothing from the estate. This change aligns with the Accelerating Access to Justice Act, 2021 (Bill 245), which modernized Ontario's estate laws.

2. Transitional Provision

The amendment came into force on January 1, 2022, but includes a transitional provision stating the rule takes full effect on January 1, 2025, for couples who were separated before 2022 and have remained apart for the required period.

For clarity, a spouse is considered "separated" under the SLRA if, at the time of death, they meet both of the following:

Condition (a) - One of the following must apply BEFORE death Condition (b) - AT the time of death

Lived apart for a continuous three‑year period immediately preceding death Living separate and apart due to marriage breakdown

Have a valid separation agreement under Part IV of the Family Law Act Same as above

Have a court order settling matters arising from marriage breakdown Same as above

Have a family arbitration award under the Arbitration Act, 1991 Same as above

3. A Note on the Transitional Application

The amendment came into effect on January 1, 2022, but required a three‑year separation period starting from that date. This means that for separations that began before 2022, the full effect of the exclusion applies as of January 1, 2025.

4. Potential Exceptions: When a Separated Spouse Might Still Inherit

Even if the separated spouse is excluded from intestate succession under the SLRA, they may still receive assets through other legal mechanisms. You should consider the following exceptions:

Exception Explanation

Jointly owned property Assets held as joint tenants (e.g., a home or joint bank account) pass automatically to the surviving joint owner outside the estate. The separated spouse would receive these assets regardless of any will or intestacy rules.

Beneficiary designations Life insurance policies, RRSPs, RRIFs, TFSAs, and pensions have named beneficiaries. If the separated spouse is named as beneficiary, they receive that asset directly.

Dependant's support claim Even if excluded from intestacy, a separated spouse may apply to court as a dependant under Part V of the SLRA for support from the estate, particularly if they were financially dependent on the deceased.

Family Law Act claim The separated spouse may bring a claim under Part I of the Family Law Act for an equalization of net family property. Such claims are subject to strict limitation periods (generally six months from the date of death).

5. Summary Table

Question Answer

Does the separated spouse inherit under intestacy rules? No – excluded under section 43.1 of the SLRA.

Does the fact that separation began in 2016 (before 2022) change the outcome? No – the transitional provision applies, but with a 10‑year separation, the exclusion is fully effective.

Could the separated spouse still receive assets through other means? Yes – joint tenancy property, beneficiary‑designated assets, dependant's support claims, or Family Law Act claims may provide an inheritance or compensation.

Limitation periods are critical:

· Six months from the date of death to bring a Family Law Act equalization claim (strictly enforced)

· Six months from the date of the certificate of appointment of estate trustee (if a dependant's support claim is intended)

Because these claims are highly fact‑specific and time‑sensitive, the separated spouse should consult with an Ontario estate litigation lawyer immediately to protect any potential rights.