If I am separated but not legally divorced, is my spouse entitled to my estate?

This article was originally published by The Hamilton Spectator.

Q: If I am separated but not legally divorced from my spouse are they entitled to my estate?

A: As of January 1 2022, your separated spouse does not have entitlement to your estate if on your death you have lived separate and apart for at least 3 years or you have a valid separation agreement. This means that if your separated spouse is named in your Will as estate trustee or beneficiary, they will not continue to be entitled to these benefits. If you die without a Will, your separated spouse will have no entitlement to a share of your estate provided the above conditions are satisfied. If you and your separated spouse are amicable and you still intend to benefit your separated spouse on death, special consideration has to be given to your Will. While a separated spouse will no longer be entitled to your estate, if you have entered into a new common-law relationship, your common-law spouse has not gained any new rights. None of the changes have the effect of validating what seems to be a commonly held belief that if a couple lives together for three years, they are as good as married. If you are separated or living in a common-law relationship, you need proper estate planning advice to ensure you have the made appropriate provisions in your Will.

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