Today’s blog post was written by Latoya Brown, Associate at Fasken LLP.

As the year draws to a close, it’s a natural time for reflection and planning. Many will be reviewing the past year, evaluating their goals and making new ones for the new year. In the realm of estates, it’s an ideal time to review your estate plan to ensure it is up to date as well as note upcoming changes to legislation that may effect such plans. Looking ahead to 2025, a previous change to the  Succession Law Reform Act[1] (“SLRA”) regarding separated spouses and intestacy rights takes full effect January 1, 2025. While this change isn’t new, its full implications will be realized in the coming year.

The Accelerating Access to Justice Act, 2021[2], amend to the SLRA  to add section 43.1, which provides that separated spouses be treated as divorced spouses at the time of death. Meaning that, if a person should die without a will, that person’s spouse will not be entitled to a preferential share in that person’s property, if the spouses are separated at the time of the person’s death. A spouse is considered separated if, at the time of their death, they were living separate and apart as a result of the breakdown of their marriage, and at least one of the following situations apply before the persons death:

(i)  they lived separate and apart as a result of the breakdown of their marriage for a period of three years immediately preceding the person’s death;

(ii)  they entered into a valid separation agreement under Part IV of the Family Law Act;

(iii)  a court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage; or

(iv)  a family arbitration award was made under the Arbitration Act, 1991 with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage.[3]

Although this amendment came into effect as of January 1,  2022, section 43.1(3) requires that the couple to have lived separate and apart for a period of 3 years starting the day the amendment came into force. Thus, the full effect of this provision will come into effect as of January 1, 2025. This means that the steps to administering a separated spouses estate may become one step simpler, as separated spouses living apart for 3 years as of January 1, may not need a separation agreement, court order  or arbitration order to obtain a separated spouse status under Part II of the SLRA.

[1] RSO 1990, c S.26

[2] SO 2021, c 4

[3] Ibid at s. 43.1(2)