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Changes to estates law for married partners
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Starting January 1, 2025, married partners who are separated for 3 years or more get nothing from their partner's estate when they die. |
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This new rule applies to married partners who:
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- separated on or after January 1, 2022, and
- are still separated when one partner dies.
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A married partner who's separated for less than 3 years also gets nothing from their partner's estate if they:
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- got a separation agreement, arbitration agreement, or court order that resolves their family issues on or after January 1, 2022, and
- are still separated when the partner died.
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What changed
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The old rules used to treat married partners the same whether they were together or separated when one died. This meant the surviving partner could get their share of their partner's estate.
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With or without a will
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These new rules about whether a married partner who's separated gets property apply whether or not their partner who dies has a will.
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A will is a legal document someone makes that says what they want to happen to their property after they die.
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Separated and get property
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In certain situations, married partners who are separated can still get their share of their partner's estate when they die.
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They can get a share if, for example, they:
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- separated before January 1, 2022, and
- did not get a legal document that resolves their family law issues on or after January 1, 2022.
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Or if they separated on or after January 1, 2022, and:
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- are separated for less than 3 years, or
- did not get a legal document that resolves their family law issues on or after January 1, 2022.
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Estate trustee in a will
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A person may have named their married partner to be their estate trustee in their will. |
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But now, the new rules also apply to whether they can be the estate trustee if they are named for that role in the will.
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This means that when the rules say a married partner who's separated gets nothing from their partner's estate, they also cannot be their partner's estate trustee if they were named for that role in the will.
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Similarly, when a married partner who's separated has the right to get property from their partner's estate, then they can be their partner's estate trustee if they were named for that role in the will.
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Common-law partners
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The changes in estates law that started on January 1, 2022, do not affect common-law partners. Common-law partners do not automatically get a share of their partner's estate when their partner dies. |
They get whatever property, if any, that their partner left them in their will. And they might be able to go to court and make a claim for property from the estate. |
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Get legal help
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It's important to review a will every few years to see if it needs to be updated. Some things may be different in a person's life, or the law may have changed. |
An estates lawyer can explain to a person what happens to their property when they die and help them make a valid will. |
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A lawyer can also give a person options if they want their partner to get their property or be their estate trustee even if they're separated.
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Community legal clinics provide free legal services to people with low incomes. Some may help with wills. These clinics may also help certain groups with wills:
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People can make a simple will and name an estate trustee using CLEO's Guided Pathway for making a will. This free online interview asks questions and uses the answers to draft documents and a guide with next steps. |
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Related resources
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