Does Marriage Cancel Your Will in Ontario?

If you are about to marry, or you married recently, you may have heard that marriage cancels your will. For many years that was true in Ontario. It is no longer the rule, and that change has caught many families out.

The old rule, and what changed

Section 16 of Ontario's Succession Law Reform Act used to say that a will was revoked by the testator's marriage, unless the will was made in contemplation of that marriage. That section was repealed by the Accelerating Access to Justice Act, 2021. Law firm and legal-news summaries report that the change took effect on January 1, 2022, and that a marriage on or after that date does not cancel an earlier will.

If you married before that date and never updated your will, the position can be less clear. A recent Superior Court decision looked at this very question. If this applies to you or to a loved one, get legal advice rather than rely on a general article.

Why this does not mean you can leave your will alone

A will that survives your marriage may no longer say what you want. It may leave everything to a parent or a former partner, name an executor you would no longer choose, or say nothing about your spouse. Your spouse also has rights under the Family Law Act and the Succession Law Reform Act that apply whatever your will says, and a will that ignores them can lead to a dispute. Marriage is one of the best moments to review your plan.

Divorce

Section 17 of the Act deals with divorce. If, after you make a will, your marriage is ended by a divorce judgment or declared a nullity, then unless the will says otherwise, gifts to your former spouse, your appointment of that person as executor or trustee, and any power of appointment are revoked, and the will is read as if the former spouse had died before you. The rest of the will stays in place.

Notice that this only happens on a divorce judgment. A court case that has started, or a separation, does not change the will on its own, except in the situations described next.

Separation

Since the 2021 amendments, the Act can apply the same treatment to a spouse you are separated from when you die, if certain conditions are met. These include living separate and apart because of the breakdown of the marriage for three years immediately before death, having a valid separation agreement, or a court order or family arbitration award dealing with your affairs. The rules on when they apply have transition provisions, so the date of the separation matters. If you are separating, update your will and your beneficiary designations rather than rely on these rules.

Common-law partners are different

The rules above apply to married spouses. A common-law partner has a different, weaker position on an intestacy, and a will is the main way to protect a partner. See our guide to common-law partners and inheritance in Ontario.

What to update after marriage

• Your will, including your executor and guardians for children
• Your powers of attorney for property and personal care
• Beneficiary designations on RRSPs, TFSAs, pensions and insurance
• Ownership of your home and any joint accounts

Talk to us

We prepare wills, Islamic wills and powers of attorney, including updates after marriage or separation. See our wills and powers of attorney page for our fees and what to expect, download the free checklist, or call (289) 652-0529. We do not handle probate or estate administration.

DISCLAIMER: This article is general information about Ontario and federal law, not legal advice, and no lawyer-client relationship is created by reading it. Laws change and every situation is different, so speak with a lawyer about yours.