Today’s blog was written by Jessica Butler, Law Clerk at Fasken LLP.
This past Tuesday, October 15th, marked a significant milestone for me an my husband – one whole year of marital bliss!
With the traditional first-anniversary gift being paper, I found myself thinking about a particularly profound paper: a Will. It’s a testament to caring, a document that conveys love through its protective intent – the ultimate love letter, one might say.
While tying the knot in Ontario does come with some inherent estate perks, marriage itself isn’t a catch-all safety net for estate matters.
Protections and Limitations of Marriage in Estate Planning in Ontario
As I discussed in a previous blog, common law spouses have no inheritance rights on an intestacy (dying without a will), but married spouses do (for the purposes of this blog, which is for informational purposes only and not a substitute for personalized legal counsel, all references to “spouse” have the same meaning as in section 1 of the Family Law Act[1] [the “FLA”]).
On an intestacy, a surviving spouse will have rights in priority to apply and be appointed by the court as administrator of the estate. They also have a right to inheritance, pursuant to the Succession Law Reform Act [2] (the “SLRA”). Alternatively, a spouse may instead elect inheritance rights under the equalization provisions of the FLA.
However, as of January 1, 2022, entering into marriage does not invalidate a pre-existing Will in Ontario. This could mean that an outdated Will, failing to mention a new spouse, could still govern one’s estate – a less than ideal scenario. A spouse left out of such a Will, like a surviving spouse on an intestacy, may elect inheritance rights under the equalization provisions of the FLA. Additionally, a surviving spouse on an intestacy or a spouse left out of a will may bring a dependant support claim under the SLRA. Finding themselves seeking judicial intervention in the midst of also dealing with their grief though is certainly not a position most would want to leave their spouse in.
The Value of a Will for Married Couples
A Will allows a testator to, in essence, speak from the beyond and convey their wishes. It’s a tool that allows couples to customize asset distribution, appoint guardians for minors, and consider the nuances of a blended family dynamic.
Digital assets, both sentimental and valuable, also require careful estate planning to ensure access for surviving loved ones lest they be locked away in the “cloud” forever.
Accompanying a Will, a letter of wishes may serve as a personal guide for the surviving spouse, articulating nuances and preferences outside the legal framework of the Will.
Marriage is like the ultimate team sport for me and my better half as we divvy up life’s responsibilities, so having a game plan for when one of us is riding solo is so important. For example, my husband is a musician with a collection of instruments, amps and the like –should they be sold? Do I give them to his collaborators for their use? Or do I hold on to them for sentimental reasons? Having my husband’s wishes clearly documented could save me the grief of trying to decide what to do with some of his most treasured things.
In addition to what it can do, the value of a well-planned and prepared Will also stems from all that it can avoid. The potential time, effort, cost, uncertainty and stress of a spouse dying without a will or with an outdated or poorly prepared Will, layered onto the grief of losing a spouse, is difficult to overstate.
The Emotion of Will-Making
Look, I get it. Thinking about your own death and the demise of your spouse isn’t exactly anyone’s idea of fun, especially for young couples. But life has a knack for throwing curveballs at us, and tomorrow is never a guarantee. A Will can help provide readiness for the eventuality, and engaging in the process can bring clarity and peace of mind, by reinforcing the commitment to care for one another, whatever may come. So picture this: a cozy night in, a bottle of pinot, and a shared vision of your legacy – that’s what I call a hot date!
As always, seeking professional legal advice is key in ensuring your estate plan is tailored to you and your spouse’s circumstance, and framing the costs of estate planning as an investment in your relationship and future can help give a more romantic tone to the formality of the whole thing.
As I reflect on my first year of marriage – a year of love, loss, growth, and plenty of Netflix binges – I can’t help but think of crafting a Will as the ultimate paper anniversary gift. Sure, it’s not a love letter filled with poetic verses, but it’s like a guiding light for the one you love most.
So let’s redefine the paper anniversary, and maybe start a new tradition. Because when you think about it, what’s more romantic than saying “I’ve got you” in every possible way, including in the eyes of the law?
[1] R.S.O. 1990, c. F.3
[2] R.S.O. 1990, c. S.26
3 Comments
Susannah Roth
October 18, 2024 - 3:11 pmI love this blog! “I got you” is the most romantic thing you could say, I agree. Thanks for saying it.
Jessica J. Butler
October 18, 2024 - 4:18 pmThank you, Susannah! Glad you enjoyed it. It was great to get a bit personal on this one.
Christine Thompson
October 18, 2024 - 9:25 pmThat is a great way to position something that the majority find very difficult to deal with – especially for those who may think they are too young still to create a Will.