Separated but Not Divorced? The New 2026 Estate Rules You Need to Know
Why Your "Ex" Might Still Be in Your Will — How a Recent Law Change Affects You
Separation is one of life’s most stressful events. Between the emotional toll and the logistical nightmare of untangling two lives, "updating the Will" often falls to the bottom of the priority list. Many Ontarians assume that once they move out and start living separate lives, their legal ties—and their estate obligations—are severed.
In the past, that assumption was a dangerous mistake. For decades, Ontario law only revoked a spouse’s inheritance rights upon a formal divorce. If you separated but never "signed the papers," your ex-spouse remained your primary heir and your named executor by default.
However, as we move into 2026, the landscape has fundamentally changed. Thanks to significant amendments to the Succession Law Reform Act (SLRA), Ontario has introduced a new "3-year rule" that treats separated spouses more like divorced ones.
But there is a catch: the law is not a magic wand. It has strict criteria, significant gaps, and hidden traps that can still leave your estate vulnerable. At Cabinet Sauvé Law, our goal is to provide you with the "Peace of Mind" that comes from certainty. This guide explains the new rules of 2026 and why a "wait and see" approach is still a major risk.
The "3-Year Rule": The 2025/2026 Game Changer
The biggest shift in Ontario estate law occurred recently, but its full effects are only being felt now in 2026. Under the updated SLRA, a spouse is now considered "separated" for estate purposes if they meet specific criteria.
If you meet these criteria, your ex-spouse is treated as if they predeceased you. This means:
- Gifts are Revoked: Any legacy or gift left to them in a Will made before the separation is automatically void.
- Executor Status is Cancelled: They can no longer act as your Estate Trustee (Executor).
- Intestacy Rights are Gone: If you die without a Will, they are no longer entitled to the "preferential share" of your estate.
The "Separated" Test: Do You Qualify?
To trigger these automatic protections, you must meet one of the following conditions at the time of death:
- The 3-Year Threshold: You have lived "separate and apart" due to a marriage breakdown for a continuous period of at least three years immediately preceding your death. (Note: This rule only applies to separations that began on or after January 1, 2022, meaning 2025/2026 is the first time this "clock" is running out for many families).
- The Formal Agreement: You have entered into a valid Separation Agreement under the Family Law Act.
- The Court Order: A court has made an order or an arbitrator has made an award settling your affairs following the marriage breakdown.
The Risk: If you have only been separated for two years and haven't signed a formal agreement yet, the law still considers you "fully married." Your ex-spouse could still inherit your entire estate if you haven't updated your Will.
The "Gaps" in the Law: What the 3-Year Rule Does NOT Fix
Many clients contact our offices in Ottawa, Rockland, or Barrie thinking the new law solves all their problems. It doesn't. There are several major areas where your ex-spouse may still have a "claim" on your assets, regardless of the 3-year rule.
1. Beneficiary Designations (The "Contract" Trap)
The Succession Law Reform Act governs your Will, but it does not override private contracts. This is the #1 mistake we see.
- RRSPs, TFSAs, and Life Insurance: These assets pass according to the "Beneficiary Designation" on file with the financial institution.
- The Danger: If you named your spouse as the beneficiary of your $500,000 life insurance policy ten years ago and never changed it, the insurance company must pay them. The 3nd-year separation rule will not stop this payment.
2. Joint Assets (The "Right of Survivorship")
If you still own a home or a bank account in "Joint Tenancy" with your ex-spouse, the property passes to them automatically through the "Right of Survivorship" the moment you pass away. It never even becomes part of your estate, so the Will (and the SLRA) never touches it. To stop this, you must "sever the joint tenancy"—a legal process that Cabinet Sauvé Law can assist with.
3. Power of Attorney (The "Authority" Gap)
The new 3-year rule revokes gifts in a Will, but it does not automatically revoke a Power of Attorney. If you are incapacitated, your ex-spouse might still have the legal right to make medical decisions for you or sell your property if you haven't revoked your old POA documents.
The Family Law Act: The "Election" Right
Even if the 3-year rule successfully kicks your ex-spouse out of your Will, they may still have a pathway to your assets through the Family Law Act (FLA).
In Ontario, a surviving spouse has a right to "elect." They can choose to take what is in the Will, or they can choose to claim an
Equalization Payment (essentially a divorce-style division of assets) as if you had separated the day before you died.
While the new estate rules make it harder for an ex-spouse to inherit, they do not take away the ex-spouse’s right to claim their fair share of the "Net Family Property" acquired during the marriage. This is why a Separation Agreement is the only way to truly "close the door" on future claims.
Peace of Mind Checklist: 5 Steps for the Separated
If you are currently separated, don't wait for the 3-year clock to tick down. Protect your legacy and your loved ones today:
- Draft a "Post-Separation" Will: Don't rely on the government’s default rules. Expressly state who should inherit your assets and who should manage your estate.
- Revoke and Replace POAs: Immediately update your Power of Attorney for Property and Personal Care. You likely do not want your ex-spouse making life-support decisions for you.
- Update Beneficiary Designations: Contact your bank and insurance provider to update your RRSP, TFSA, and Life Insurance beneficiaries.
- Sever Joint Tenancies: If you don't want the house to go 100% to your ex, you need to change the type of ownership on the title.
- Finalize a Separation Agreement: This is the "gold standard" of protection. It allows you to waive future claims against each other's estates and provides the clarity the courts look for.
How Cabinet Sauvé Law Can Help
At Cabinet Sauvé Law, we specialize in the intersection of Real Estate, Business, and Estates. We understand that a separation impacts every one of these areas.
When you work with us, we don't just "fix a Will." We look at your entire life:
- We help you untangle your Real Estate holdings.
- We advise on how to protect your Business from a former spouse’s claims.
- We draft the Wills and POAs that reflect your current reality, not your past.
Our "Integrated Firm" model means you get a holistic strategy. We ensure that your Separation Agreement, your Will, and your Property Titles all work together to provide you with true peace of mind.
Don't Leave Your Legacy to Chance
The 2026 rules are a step in the right direction, but they are a safety net with many holes. Don't let your hard-earned assets go to the wrong person because of a technicality or an outdated document.
Ultimately, a separation is more than just a change in your living situation—it is a total shift in your financial and legal identity. Relying on the 'default' rules of the 3-year clock is a gamble that leaves too much to chance, especially when complex assets like your family home or business are at stake. By taking control now, you ensure that your legacy is determined by your current intentions, rather than by laws that might not fully account for your unique family dynamics. Updating your estate plan is the final, essential step in turning the page toward your new chapter, providing the closure you need and the protection your loved ones deserve.
Contact Cabinet Sauvé Law today to schedule a consultation. Whether you are newly separated or have been living apart for years, we will help you secure your future so you can move forward with confidence.
