Updating Your Will and Estate Plan After Filing Separation Papers

Separation’s Impact on Existing Wills

Separation Does Not Revoke a Will in Ontario

Under Ontario’s Succession Law Reform Act, a separation—whether informal or formalized through a separation agreement—does not automatically revoke or invalidate your existing will. This means that even if you’ve been living apart from your former spouse for years, the will you made during your marriage may still be legally binding unless formally updated or revoked.

In contrast, divorce does change the legal effect of certain provisions in a will (e.g., revoking gifts to an ex-spouse), but separation does not trigger those same automatic changes. This legal distinction makes it especially important for separated individuals to review their estate documents promptly.

Ex-Spouse May Remain as Executor or Beneficiary

If your current will names your former spouse as executor, trustee, or principal beneficiary, these designations will still be legally valid after separation—unless you update the will. This can result in your ex having significant control over your estate or receiving assets you no longer wish to leave them.

Even if you’ve included terms in your separation agreement to deal with the division of property or support, they may not override the terms of your will unless specifically addressed. In some cases, this could even lead to court disputes among surviving family members or unintended disbursements of your estate.

Potential Conflicts with Current Intentions

The longer a separated person delays updating their estate plan, the greater the risk of conflicts between their current wishes and outdated legal documents. For instance:

A will written during marriage might provide your entire estate to your spouse, despite a now-hostile or distant relationship.
A power of attorney naming your ex may give them control over your health care or finances if you become incapacitated.
Life insurance or RRSP/RRIF designations might remain unchanged, benefiting your former partner contrary to your new wishes.

Key Documents That Should Be Updated

The following documents should be carefully reviewed and, where necessary, updated:

Last Will and Testament, Powers of Attorney

Your last will and testament outlines how your estate will be distributed upon death. If it still names your former spouse as executor or main beneficiary, those provisions remain valid after separation unless changed.

Revise your will to appoint a new executor and redirect any gifts previously intended for your ex.
Consider updating your power of attorney for property and personal care. If your former spouse is still named, they could retain the legal authority to make financial or health-related decisions on your behalf.

Making these changes ensures that your wishes are respected and that only trusted individuals have control over your affairs.

RRSP and Life Insurance Beneficiary Designations

Beneficiary designations on Registered Retirement Savings Plans (RRSPs), Registered Retirement Income Funds (RRIFs), and life insurance policies are not automatically revoked by separation in Ontario. These accounts typically pass outside the will, meaning your ex could still receive them even if removed from your estate plan.

Contact each financial institution and insurance provider to change the named beneficiary to someone else—such as a child, sibling, or trust.
Keep documentation of the changes and ensure they are consistent with the terms of your separation agreement to avoid future disputes.

Joint Property and Survivorship Rights

Property held as joint tenants with a right of survivorship will pass automatically to the surviving joint owner, regardless of your will. This includes:

Joint bank accounts
Real estate registered as joint tenancy

Following separation, many individuals mistakenly believe that a separation agreement severs these legal ties. However, unless ownership is legally changed to tenants-in-common or transferred entirely, your ex-spouse could still inherit full ownership upon your death.

Speak with a lawyer to update land title registrations or restructure joint accounts.
Reflect these changes in your financial and estate planning documents for consistency.

Aligning Estate Plans with Your Agreement

Ensure Separation Agreement Terms Match Your Will

Your will and separation agreement should not contradict one another. For example, if the separation agreement requires you to transfer specific property or leave certain assets to your children or former spouse, your will must reflect these obligations.

Conflicting documents can lead to litigation or rejection of part of your will.
It’s advisable to have a family lawyer and estate lawyer work together to ensure consistency across all documents.

By aligning the documents, you reduce the risk of confusion among heirs and beneficiaries and provide clear instructions to executors and trustees.

Life Insurance or Support Obligations Must Be Honoured

In Ontario, it’s common for a separation agreement to include clauses requiring life insurance coverage to secure future support payments—especially where child or spousal support is involved. These insurance policies should:

Be maintained for the agreed-upon amount and term.
Name the correct beneficiary (often a trustee for minor children).

If your will or beneficiary designations contradict your agreement, courts may still enforce the separation agreement—potentially delaying or complicating estate administration.

Update Guardianship and Trust Provisions for Children

If you and your ex-partner have minor children, you’ll need to revisit your guardianship and trust arrangements to ensure they reflect your current parenting situation:

Appoint new guardians if the previous nominee was your former spouse or if circumstances have changed.
Review any testamentary trusts created for your children to ensure they align with custody arrangements, financial support plans, and the new family structure.

Additionally, consider naming a trustee other than your former spouse if you no longer want them managing funds left for your children.

Working with Both Family and Estate Lawyers

Coordinated Legal Advice Reduces Errors

A family lawyer understands the intricacies of your separation agreement, including spousal support, child support, and property division obligations. An estate lawyer ensures your will, powers of attorney, and beneficiary designations comply with these terms.

Working together, these lawyers can identify potential conflicts between your separation agreement and estate documents.
They can also ensure that specific clauses—such as required life insurance coverage or property transfers—are legally enforceable and properly executed.

This coordinated approach greatly reduces the risk of legal gaps or contradictions that could undermine your intentions.

Prevents Unintended Asset Distribution

One of the most common post-separation issues is assets unintentionally going to a former spouse or being distributed contrary to your current wishes. For example:

A life insurance policy might still list your ex as the beneficiary.
A joint property title may not have been severed properly.
A will might still name your former partner as executor or guardian.

By consulting both legal experts, you can eliminate outdated designations, ensure clarity around estate distribution, and legally redirect assets to the right recipients.

Helps Protect Long-Term Goals and Dependants

After separation, your priorities often shift—especially if you have children or new financial goals. Your estate plan should reflect these evolving circumstances:

Establishing or updating trusts to safeguard your children’s future.
Ensuring support obligations outlined in your separation agreement are secured through insurance or property provisions.
Appointing guardians and trustees aligned with your values and long-term plans.

A team-based approach between family and estate lawyers helps you balance legal compliance with personal objectives, protecting both your assets and your dependants in the years to come.

Risks of Not Updating Your Documents

Assets Could Go to Unintended Parties

If your will, beneficiary designations, or jointly held assets still name your former spouse, they could legally receive part—or all—of your estate.

Life insurance proceeds, RRSPs, and jointly held property pass outside the will and could be claimed by your ex if not changed.
Even if your separation agreement outlines who should receive what, financial institutions follow the beneficiary designation on file, not the terms of your agreement or your verbal wishes.

Without proper updates, your estate may be distributed in ways you never intended.

Executors May Face Legal Challenges

An outdated will that contradicts your separation agreement can create confusion and conflict among beneficiaries. This often leads to:

Legal disputes over the validity or interpretation of your estate documents.
Delays in estate administration, increasing costs and emotional strain on your loved ones.
Challenges to your choice of executor, especially if your former spouse is still named in that role.

Updating your will and related documents ensures your executor can act with confidence and clarity, avoiding unnecessary court involvement.

Children’s Inheritance Could Be Jeopardized

One of the most significant risks of not updating your documents is the potential harm to your children’s future financial security.

Without an updated will, your former spouse might control assets meant for your children, especially if named as trustee.
If guardianship or trust provisions are outdated, there may be no clear legal direction on who should care for your children or manage their inheritance.
Assets could become tied up in probate disputes or inadvertently passed to the wrong party.

By aligning your estate plan with your separation agreement, you help secure your children’s inheritance and ensure that your wishes are honoured in both the short and long term.