4 min read

Marital Status in Canada: The Crucial Intersection with Estate Planning

Written by
Willfinity Team

As one navigates the complexities of life, several events and decisions leave profound marks on our personal and legal lives. One such element is our marital status, which, although seemingly straightforward, intertwines intricately with the sphere of estate planning. When contemplating the creation or revision of a will, it's paramount to consider how one's marital status might influence its validity, interpretation, and eventual execution.

Understanding Marital Status in Canada

In the vast expanse of Canadian law, marital status isn't merely a checkbox on a form—it carries legal weight, with implications ranging from tax obligations to inheritance rights. The Canadian legal framework recognizes several marital statuses:


This status applies to individuals who have never married or entered into a legally recognized common-law relationship. It also encompasses those who might be widowed or divorced. For those unacquainted with the term, being widowed means having lost a spouse through death, while being divorced implies that one has legally ended a marital relationship.

Common-law Relationship

A common-law relationship is formed when two individuals live together in a conjugal relationship for a specified period without being legally married. The time duration for this cohabitation varies by province.


This refers to individuals who have entered into a legal marriage, either in a civil or religious ceremony. The legal implications of this status are profound and extend to various domains, including estate planning.


Separation denotes a scenario where married individuals have chosen to live apart but haven't yet pursued or finalised a divorce. It's crucial to note that a legal separation doesn't terminate a marriage; the individuals remain legally married despite their decision to live separately.


Divorce signifies the legal termination of a marriage. Upon divorce, individuals revert to single status unless they enter into another marriage or common-law relationship.

The Single Individual and Estate Planning

For those bearing the 'single' status, crafting a will might seem straightforward—after all, there's no spouse to account for. However, this assumption is an oversimplification.

The most pressing concern for single individuals is the potential shift in marital status. For instance, embarking on a journey from being single to entering a common-law relationship or getting legally married can drastically alter the landscape of estate planning. A pivotal point to grasp is that in many Canadian provinces, marriage can revoke any pre-existing will. This revocation can be an unforeseen shock for many who, amidst the joy and celebrations of their wedding, might not have anticipated the legal ramifications on their meticulously crafted will.

Why is this significant? Consider the implications: without a valid will, the distribution of one's assets will be dictated by provincial intestacy laws, which might not align with the individual's wishes. Consequently, the absence of a provision contemplating an impending marriage can inadvertently leave loved ones without their due inheritance.

However, it's essential to understand that not all Canadian provinces follow the principle of automatic revocation upon marriage. In provinces like British Columbia, Alberta, Quebec, PEI, Newfoundland and Labrador, Yukon, Northwest Territories, and Nunavut, a pre-existing will remains intact post-marriage. Contrastingly, in provinces such as Saskatchewan, Manitoba, Ontario, Nova Scotia, and New Brunswick, marriage can revoke a will unless it's explicitly crafted in anticipation of the said marriage.

Furthermore, for those in common-law relationships, a will becomes an indispensable tool. Why? Because the default legal provisions in many provinces don't necessarily protect the rights of common-law spouses. In the absence of a will, a common-law partner might find themselves devoid of any inheritance, compelling them to seek legal recourse against the estate—a scenario fraught with emotional and financial strains.

Common-Law Relationships: Navigating the Legal Maze of Estate Planning

The term 'common-law' often evokes curiosity, and occasionally, confusion. Unlike a formal marriage, a common-law relationship emerges organically as two individuals cohabit in a conjugal relationship without the official title of 'husband' or 'wife'. While the essence of commitment remains, the absence of formal nuptials leads to unique legal considerations, especially in the realm of estate planning.

The Canadian Perspective on Common-Law Relationships

Canada's progressive stance on relationships is evident in its recognition of common-law partnerships. However, the criteria defining such a relationship varies across provinces. For instance, in British Columbia, two individuals qualify as common-law spouses after living together for a mere two years. Meanwhile, other provinces may demand a more extended period of cohabitation or the birth of a child to confer this status.

Regardless of the criteria, the legal weight of a common-law relationship is undeniable. These unions may affect property rights, taxation, and yes, estate planning.

Estate Planning for Common-Law Spouses

Crafting a will for someone in a common-law relationship is not just recommended—it's imperative. The reason is both poignant and practical: most provincial intestacy rules (laws that dictate asset distribution when someone dies without a will) don't automatically recognize common-law spouses. Thus, should one partner pass away without a will, the surviving partner might find themselves excluded from any inheritance.

This exclusion isn't a mere oversight but a reflection of the law's inherent nature. Legal statutes, including intestacy rules, operate on definitions and categories. In many provinces, the term 'spouse' in the context of intestacy rules doesn't encompass common-law partners. Consequently, the assets of a deceased individual might bypass their common-law partner, flowing instead to biological relatives or even the state.

For common-law partners, the solution is clear: a well-drafted will. Such a document ensures that, regardless of provincial nuances, the deceased's wishes are honoured. By explicitly naming their common-law partner as a beneficiary, individuals can circumvent the potential pitfalls of intestacy and ensure their partner's financial well-being.

Moreover, a will offers another advantage: it can delineate provisions for children, especially those born outside the current common-law relationship. This clarity prevents potential inheritance disputes among offspring from different relationships, ensuring that all children—whether from the current union or previous ones—receive their fair share.

The Potential Perils of Neglecting Estate Planning

While the creation of a will for common-law partners is paramount, the consequences of neglecting this duty are equally significant. Without a will, the surviving partner might face not only emotional turmoil but also financial hardships. They might need to resort to legal avenues, making claims against the estate, which can be both time-consuming and expensive.

Moreover, the absence of a will can lead to rifts among surviving family members. Siblings, parents, and children might find themselves in legal battles, disputing the rightful distribution of assets. These disputes can erode familial bonds, leaving behind not just legal bills but also fractured relationships.

Marital Separation: The Legal Quagmire of Estate Planning

Marriage, as an institution, is as much about legalities as it is about love and commitment. When the ties of matrimony unravel, the aftermath isn't limited to emotional ramifications; it stretches into the vast realm of legal intricacies. One such complexity is the influence of marital separation on estate planning.

Deciphering Marital Separation

To the layperson, marital separation might seem like a stepping stone to divorce. However, in the eyes of Canadian law, the distinction is clear. While divorce signifies the legal termination of a marriage, separation represents a phase where spouses live apart but remain legally married. It's a space of ambiguity, where personal decisions and legal obligations intersect.

The Influence of Separation on Estate Planning

For individuals navigating the murky waters of separation, estate planning becomes particularly crucial. Why? Because, contrary to popular belief, separation doesn't automatically negate the rights and obligations stemming from marriage. Thus, if one spouse passes away amidst a separation, the surviving spouse might still possess legal rights to the deceased's estate.

Here's where a well-structured will comes into play. A will can reflect the individual's current wishes, ensuring that assets are distributed according to their preferences rather than default legal provisions. Without a will, or with an outdated one, the assets might inadvertently flow to the estranged spouse, potentially bypassing children, other family members, or desired beneficiaries.

However, while a will is a powerful tool, it isn't the sole consideration. Separating spouses must also scrutinise their separation agreement. This document, often crafted with legal counsel, outlines the rights and obligations of each party post-separation. It's paramount that the will and the separation agreement align harmoniously. Any discrepancies can lead to legal challenges, delaying the estate's distribution and potentially diminishing its value through legal costs.

Divorce and Its Impact on Estate Planning

While separation occupies a space of legal ambiguity, divorce is definitive. It represents the legal conclusion of a marriage, severing most rights and obligations between the parties. Given this clear break, one might assume that a divorce would automatically exclude the ex-spouse from any inheritance rights. Unfortunately, this assumption isn't universally accurate across Canada.

In certain provinces like New Brunswick, Newfoundland and Labrador, the Northwest Territories, Nunavut, and the Yukon, divorce doesn't automatically alter the provisions of a pre-existing will. This oversight means that, unless updated post-divorce, a will could inadvertently bestow assets upon an ex-spouse.

Contrastingly, in provinces like British Columbia, Alberta, Manitoba, Nova Scotia, Ontario, PEI, and Saskatchewan, the landscape is different. Here, while divorce doesn't nullify a will, it does treat provisions relating to the ex-spouse as void. Thus, unless explicitly stated otherwise, the ex-spouse might be excluded from any inheritance and stripped of roles like executor or trustee.

However, a word of caution is warranted. Even in provinces where divorce impacts a will's provisions, it's prudent to revisit and revise the document post-divorce. This revision ensures clarity, minimises potential disputes, and truly reflects the individual's post-marital wishes.

Navigating the Future: The Importance of Proactivity in Estate Planning

Amid the ebb and flow of life, certain constants remain. One such constant is the inevitability of change—changes in relationships, circumstances, and desires. As we've navigated the intricate maze of marital statuses and their implications for estate planning, a singular truth emerges: the importance of proactivity.

The Perils of Complacency

Estate planning isn't a one-time task. Given the fluidity of life, a will crafted at one point might not reflect one's wishes at another. Complacency in updating this crucial document can lead to unintended consequences. Assets might not reach the desired beneficiaries, legal battles might ensue, and the individual's true intentions might remain unfulfilled.

For instance, consider a scenario where an individual, post-divorce, neglects to update their will. In such a situation, their ex-spouse, despite the emotional and legal detachment, might still stand to inherit. Such outcomes, while legally valid, might be far from the individual's current wishes.

The Power of Periodic Review

Given the dynamic nature of life, it's prudent to adopt a ritual of periodic will reviews. Such reviews, ideally conducted annually or after significant life events, ensure that the document remains a true reflection of one's wishes.

Whether it's the joy of a new marriage, the complexities of a separation, or the clarity of a divorce, each event offers a vantage point—a chance to assess, reflect, and revise. By doing so, individuals not only protect their assets but also ensure the well-being of their loved ones.

Furthermore, periodic reviews offer another advantage: they allow individuals to stay abreast of legal changes. Laws, like life, evolve. Provinces might update their statutes, leading to altered implications for estate planning. Staying informed and proactive ensures that one's will remains not just personally relevant but also legally robust.

Final Thoughts

As we conclude this exploration, a simple yet profound realisation beckons: estate planning, at its core, is an act of care. It's a gesture that transcends the individual, offering protection, clarity, and peace to those left behind.

In the intricate dance of relationships and legalities, a well-crafted will serves as a guiding star—a beacon that illuminates the path, ensuring that even in absence, an individual's wishes light the way.

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