Dying During Divorce

Published on 29 August 2022, 07:22:56 AM

Your divorce may be voided if your spouse dies before it becomes legal. 

Axess Law Wills and estates (Ontario) lawyers advise you on your matrimonial rights if you are widowed while a divorce order is pending or signed but not yet final.

Since the divorce isn’t complete, you are legally still married to your now deceased spouse. 

 

Legal Rights and Near Divorce

You likely weren’t expecting your spouse to die during divorce proceedings. 

But if a sudden accident or fatal illness occurs before your divorce decree takes effect, your estate status could change. 

That grey zone may affect survivor benefits and bequests from a spouse’s estate. Even if all the legal documents are signed, including property division in divorce, a spouse’s death has legal ramifications.  

 

Wills and Pending Divorce

What happens to Wills pre-divorce? It depends.

 

New Wills Laws

2021 Divorce Act changes mean Wills made while married stay in place until revised or revoked. 

Once a divorce is final, gifts in Wills made to a former spouse used to be revoked. Family law changes (2021) leave Wills intact, along with any bequests your spouse leaves to you. Executorships you agreed to are no longer extinguished. 

After March 1, 2021, your spouse must literally write you out of their Will to change it for legal purposes. Unless your spouse thought to redo their Will, you might still have inherited if your divorce had been final. 

Your matrimonial rights could trump Will bequests to even a new common law partner your spouse intended to leave assets to. 

 

Significance for You

When your spouse dies before the divorce is legal, their estate often flows to you just as if you had never split up. You can accept bequests in your spouse’s Will or elect for a preferential share of their estate.

Your property rights are only eliminated if you were legally separated or separated at least three or more years — and then only if your spouse dies on or after Jan. 1, 2022. That’s the day changes to Wills for separated partners take effect.

Legally married spouses who fail to make a Will or have their Will declared invalid for any reason forfeit a preferential share under laws for dying intestate in Ontario (Succession Law Reform Act). Despite not having a valid Will, their estate still owes you.

 

Preferential Share Amounts

Provided you’re still married when your spouse dies, you stand to receive:

• the first $350,000 of their estate ($200,000 pre-March 1)
• plus 1/2 of the balance shared with a first child
• or 1/3 if you had two or more children together. 

You have up to six months to elect to accept a preferential share if your spouse had a Will. If they didn’t, your right to a preferential share is automatic. 

 

Who Gets Matrimonial Homes

Since you’re still married, you can also apply for exclusive possession of any matrimonial home you shared and ordinarily occupied with your spouse. Homes include any houses, condos, cottages, vacation properties outside Canada, boats or motorhomes you owned and spent time in together. 

Making a right of survivorship application removes your spouse’s name from the property title — provided you were joint tenants to begin with. 

You may still have to buy or sell shares if others, like an adult child, business partner or next of kin, are on the title. Axess Law’s real estate lawyers help with:

• selling homes to settle with title holders
• or completing an application for transfer to surviving joint tenant in Ontario. 

 

Survivor Benefits and More

You may be entitled to survivor benefits in private pension plans or public pensions such as the Canada Pension Plan, Old Age Security or Guaranteed Income Security. Pension benefits received after separation can affect how much you receive — your benefits may be based on the portion of your spouse’s pensions not subject to property division during divorce in Ontario. Check with the plan administrator on divorce and pensions in Ontario.

 

Why You Need a Lawyer

Axess Law lawyers for Wills can answer all your questions about your predivorce status. Before you accept or distribute bequests from a spouse’s Will, ask our probate lawyers — Toronto, Greater Toronto Area or Ottawa — for a free consultation. 

Our licensed professionals review Wills you have been appointed to execute after death. We show you how to calculate estate administration taxes and what assets require probate in an Ontario court. Best of all, our first probate consultation is free.

Spouses with foreign business shares or Canadian partnerships can have complex personal and business Wills. Our licensed probate lawyers apply for a certificate of estate trustee with a Will to give you legal authority to collect, appraise and distribute estate assets.

Some assets may be passed directly to named beneficiaries without going through probate court. We deduct these from estate administration tax calculations, along with certain debts and liabilities that reduce the amount you pay.

 

Probate Wills for Less

Axess Law lawyers cost far less than traditional legal services. We review how complex probate applications may be before giving you a free quote. Our all-inclusive fees have no hidden taxes or surprises.

You pay only $199.99 and up, plus HST to prepare a Will to protect your own interests or add new family members. Adding power of attorney for personal care and property at the same time saves time and money. A Will and power of attorney is just $249.99 and up plus HST. 

Think you need multiple Wills? Get primary Wills for personal property and secondary Wills for business owners with corporate shares starting at $600 and up, plus HST. 

 

Book Virtual or In Person Legal Appointments

Access lawyers in Toronto, Greater Toronto Area or Ottawa in person or by using our secure, remote video conferencing services from anywhere in Ontario. 

We have virtual lawyers for Wills near you, anywhere you happen to be, 7 days a week. Use our easy online booking form or call our 1-647-479-0118 lawyer line to find a Wills and estates lawyer near you or probate professional. Toll free calls are accepted at 1-877-402-4277.

Prefer to meet in person? Make appointments at any Axess Law locations in Toronto, Greater Toronto Area or Ottawa. We have convenient day or evening appointments and onsite parking or easy transit access.