Second Marriages and Estate Planning: What Older Adults Need to Know

Don’t let your old will complicate your new marriage.

Your Will Is Still Valid After Marriage—But Is It Right for You?

Historically, Ontario law automatically revoked a person’s will upon marriage. This meant that newlyweds—especially older adults entering second marriages—could unintentionally pass away without a valid estate plan, leaving their assets to be distributed in accordance with Ontario’s intestacy laws. However, as of January 1, 2022, automatic revocation of a will upon marriage no longer applies. If you remarried after this date, your existing will remains in effect—whether that’s a relief or a concern depends on your circumstances.

This change brings important opportunities and risks. While it helps prevent financial abuse in cases of predatory marriage, it also means that an outdated will could still dictate how your estate is distributed. If your will names a former spouse or excludes your new partner, your intentions may not be reflected unless you update your estate planning documents. Given these changes, it is very important that you review and update your estate plan.

What Happens If Your Will Is Revoked?

A revoked will is essentially invalidated, meaning your estate will be distributed as if you passed away intestate (i.e., without a will). That means that the default intestacy rules apply under Ontario’s Succession Law Reform Act. Before this rule changed, getting married revoked your will unless it was made explicitly “in contemplation of marriage.” Moreover, if you tied the knot before January 1, 2022, and have not updated your will since, this old rule still applies and you likely do not have a valid will. 

A Safeguard Against Predatory Marriages

The old rule unintentionally left older adults vulnerable to the possibility of financial exploitation. Opportunistic individuals could marry a person, while operating under the knowledge that this marriage would automatically revoke their new spouse’s will, even if the new spouse was unaware of this consequence. This loophole previously allowed unscrupulous spouses to inherit the lion’s share of their deceased spouse’s estate under Ontario’s intestacy laws. By keeping wills valid after marriage, the law now offers greater protection against this potential form of elder financial abuse.

Your Spouse Still Has Rights—Even If They’re Not in Your Will

While this amendment prevents automatic revocation, it does not mean a spouse is left with nothing. Section 5(2) of Ontario’s Family Law Act effectively allows surviving spouses to claim a portion of the estate, even if they are not named in the will. This means that if someone has remarried and wishes to provide for children from a prior relationship, they must plan carefully to ensure their estate is distributed as intended.

What Should You Do Now?

These changes reinforce the need to review your will after major life events, especially marriage or remarriage. If you have an older will, it may not reflect your current wishes, or it may leave your estate vulnerable to unexpected claims. The best way to ensure your estate plan is up to date and legally sound is to consult an estates lawyer.

At Gillespie Legal, we understand the unique estate planning concerns of older adults, from protecting assets for children and grandchildren to ensuring a fair division between a new spouse and existing family members. If you have questions about how these changes affect you, we’re here to help. Contact us today to discuss your estate plan and ensure your wishes are fully protected.