As we turn the corner from winter to spring, we also enter into another important time of year: wedding season. With the start of this season, estate planners should remind themselves, and their clients, of a few of the critical intersections between family law and estate law that specifically impact married (as opposed to cohabiting) couples:
- As of January 2022, following the passage of the Accelerating Access to Justice Act, marriage no longer automatically revokes a Will in Ontario. While this means there is no automatic intestacy if a party does not prepare a new Will in contemplation of marriage (or shortly after marriage), it does give rise to the potential that a person will die with a Will that does not properly provide for their spouse;
- In Ontario, a surviving spouse who was legally married to the deceased may elect to take under the deceased’s Will, or for an equalization of net family property under the Family Law Act. This may be particularly relevant now in light of point 1 above – we can perhaps expect to see more people passing away with Wills executed before marriage that provide less for a spouse than they would receive on an equalization of net family properties; and
- Particularly in light of the availability of an equalization of net family property on death, marriage contracts are an important tool in the estate-planning toolkit. While they are typically thought of as a means to protect assets on separation or divorce, it’s important for planners to remember that the death of a party is also a form of relationship breakdown, the consequences of which can be addressed in a marriage contract. A contract may not be an appropriate choice for all clients, but is worth mentioning as part of a holistic estate planning discussion.
Of course, there are other important estates considerations that apply to both married and cohabiting couples (for example, the availability of certain tax rollovers; RRSP, TFSA, and pension considerations; and dependants support), but this blog highlights those areas that specifically change when people say “I do”.
It’s important for planners, then, to remind clients that between cake tasting, clothes fittings, and invitation mailings, they should give some thought to their estate plan as they enter this exciting new time in their lives.
 Family Law Act, R.S.O. 1990, Chapter F.3 (the “FLA”), s.5(2), 6(1).
 FLA, s.52