What Happens If a Spouse Dies During Separation?

When a marriage ends, the legal and emotional complexities can be challenging. If one spouse passes away during a period of separation, these challenges can become even more nuanced. Ontario’s Succession Law Reform Act (SLRA) plays a crucial role in determining how a deceased person’s estate is handled in such cases. Here, we unpack what happens if a spouse dies while legally separated and how recent changes to the SLRA may impact estate planning, inheritance rights and pending family law litigation. 

Understanding the SLRA and Separation

The SLRA governs the distribution of a deceased person's property in Ontario, particularly in cases involving wills and estates. For spouses who are formally married and then formally divorced, the SLRA has clear rules for determining inheritance. However, historically, those rules did not apply to spouses who were separated but not yet divorced. 

This changed in 2022 with amendments to the SLRA. Now, separated spouses—if they meet the legal definition of separation under the SLRA—are also subject to these rules. Previously, separated spouses may have been able to claim a portion of their deceased spouse’s estate, even if they were separated. With the latest amendment to the SLRA in 2022, a separated spouse is no longer automatically entitled to inherit from the deceased’s estate.  

Definition of 'Separated' Under the SLRA

To be considered separated under the SLRA at the time of death, the following criteria must be met: 

1. Living Apart: The spouses must have lived separate and apart for at least three years due to the breakdown of their marriage. 

1. Formal Agreement or Court Order: A valid separation agreement, court order, or arbitration award addressing their marital breakdown must be in place. 

1. Separation at Death: At the time of the deceased’s passing, the spouses must still be living separate and apart due to the marriage breakdown. 

It’s important to note that these changes are not retroactive. If a spouse passed away prior to 2022, the rules in effect at that time would apply. This means that, under those earlier rules, a separated spouse might still have been eligible to inherit as if they were married. 

How Does Death During Separation Affect Inheritance?

If a separated spouse dies before a divorce is finalized, the surviving spouse is generally not entitled to inherit from the deceased’s estate under the updated SLRA—provided they meet the definition of separation. This distinction ensures that separated spouses are treated similarly to divorced couples in matters of inheritance. 

The Role of the Federal Divorce Act (DA)

Case law under the Federal Divorce Act (DA) offers additional clarity. In the case of Alexa v. Alexa (1995), the court examined whether a marriage ends upon the death of a spouse or the finalization of a divorce. The court determined that death terminates the marriage —a principle supported not only by case law but also by the customary language of marriage vows, which traditionally state, "until death do us part." Further, this aligns with the principle that a divorce order does not affect marital status until it takes effect. 

In practical terms, if a spouse dies during separation, the marriage is effectively terminated by death, not by a divorce decree. Following this interpretation, the surviving separated spouse is considered a “former spouse” and is unlikely to inherit under the SLRA. 

Widow, Widower, or Divorced: What is the Surviving Spouse Considered?

A significant question that arises in such cases is how should the surviving spouse be referred to? The question is raised as to whether the surviving spouse is considered a widow/widower or is divorced. This question is again answered by referring to the 2022 SLRA amendments, where two distinctions need to be made: 

• If the spouses were separated for at least three years, the surviving spouse is treated as divorced for inheritance purposes. 

• If the separation was less than three years, there may be room for interpretation, and the surviving spouse might still be considered a widow/widower. 

This distinction can have implications for estate claims, as widows and widowers may have different rights compared to divorced individuals. For example, a widow/ widower may have the ability to claim the deceased spouse’s pension in the form of a Survivor’s Pension. 

Implications for Estate Planning  

For separated individuals, the 2022 SLRA amendments highlight the importance of estate planning. Without clear legal agreements or updated wills, a separated spouse might inadvertently inherit or be excluded from the estate in ways that do not align with the deceased’s wishes. To ensure that your estate is distributed as intended: 

• Update your will regularly, especially after a separation. 

• Formalize separation agreements to clarify legal rights and obligations. 

• Seek legal advice to understand the implications of these changes under the SLRA. 

Conclusion

When a spouse passes away during separation, the updated SLRA ensures that their estate is managed fairly, treating separated spouses more like divorced couples. However, the specifics of each case depend on the duration and terms of the separation. If you or someone you know is navigating this complex situation, consulting with a legal professional is essential to understand your rights and responsibilities.