With the low survival rate for marriages, clients must be mindful of who their legal spouses are for the purpose of the law of inheritance.  We have seen two rather strange scenarios in which the deceased’s likely would have had further wishes given the outcomes.  First, when spouses have made each other primary beneficiaries under their wills, no amount of time being separated changes that beneficiary designation.  Upon receiving a divorce, Ontario law deems the divorced spouse to be deceased for the purpose of interpretation of the deceased’s will but this is not the case on separation and an amendment to the wills is required to avoid the estranged spouse from inheriting.  The second scenario involves spouses without wills.  The law in Ontario has two definitions of spouses: first, a person your are married to and second, a person you have been living in a conjugal relationship in excess of three years or have done so for less time but have had a child with – the later known widely as a “common law” spouse despite being a creation of statute.  In the law of succession on death, the common law definition does not apply and that person has no legal standing for inheritance without a will.  We saw a scenario where a woman was separated for over 30 years but not divorced.  She had been in a long term common law relationship with a man for 23 years.  She did not make a will and had assets in her own name.  These assets passed directly to her estranged spouse under Ontario law, plus issues arose at the funeral home over who had rights to make funeral arrangements – a task which a will makes clear.  Madden, Sirman & Cowle can ensure that your wishes are properly expressed and documented regardless of your unique situation.


NOTICE: MSC Blog posts are for general legal information and should not be taken as legal advice.  There are subtle differences in every circumstances and constant changes to the law which may change our view of your situation from those contained in the items on this blog.  Always consult a lawyer to obtain legal advice you can rely on.