Marital status matters in Ontario, at least when it comes to the law and your will. There are some misconceptions out there about the current estate laws, so let’s take a closer look at a few legal basics so you can be armed with more information and hopefully, be inspired to get your will drafted no matter what your relationship status is.
Ontario laws around wills, marriage and living common-law
Throughout someone’s life, they may get married, divorced, and/or live common-law. Each one of these types of relationships are seen a little differently in the eyes of law, and when it comes to your will or what happens upon your passing, it can make a big difference.
- Marriage
The moment you get married, any will you had before will be automatically revoked or cancelled. Since it’s no longer valid, a new one will be needed. If you don’t get a new will, your current legal spouse will inherit your estate upon your death. Even if you do get a new will, there are instances where you may still need to financially support an ex-spouse, even if they aren’t named in your will.
- Divorce
Unlike getting married, when you get divorced your will is not legally revoked. What happens is that references to your ex-spouse are revoked and they won’t be able to inherit from you or become your executor or trustee. The remainder of your will stays intact.
- Separation
When you are separated, there is no change to your will, even if you’ve been separated for 15 or 30 years. Unless you get a divorce, you are considered to be legally married to that person, and with that, they are entitled to your estate as such.
Dying ‘intestate’ or without a will
If you die without a will, there are a few different things that can happen. First, there will be a court-appointed executor and/or trustee assigned, and then it can take significant time and expense for your estate to be assessed and distributed. Very often, the end results of this process don’t make very many loved ones happy and it causes a lot of hardship for everyone involved. Here are a few scenarios:
- Divorced or never married but have a common-law spouse
Your common-law partner doesn’t have any legal claim to your property if there is no will, no matter how long you’ve been together. As shocking as this is for many people, it’s the law. Your common-law partner may be able to seek support money, but it’s no guarantee. Additionally, if your common-law spouse isn’t on the deed or title to a home you both shared, they could be locked out, even when they helped pay the mortgage or bills.
- Separated with a new common-law relationship
If you have a current common-law spouse but never got around to finalizing that divorce from your previous marriage, your ex-spouse can claim your estate. Even with a separation agreement, the courts still see you as being married.
As you can see, having a will is essential whether you are in a relationship or not. Too many people incorrectly believe that the courts will ‘logically’ rule in favour of the most current partner or spouse, but the law is the law. Make today the day you commit to finally drafting up that will or updating your old one! You’ll gain peace of mind from taking this important step to protect your loved ones. Make sure your assets get into the right hands; we specialize in helping Muskoka families with planning and executing their wills and estates. Call to make an appointment at 705-746-6444; we’re here for you to help make this process as simple and legally binding as possible.
