Family law and estate law are often treated as separate areas of practice, and in many cases they are. But death and relationship breakdown frequently intersect in ways that require expertise in both — and cases that straddle the boundary are among the most complex in private law. Understanding where the two areas overlap helps families navigate situations that don't fit neatly into either category.
Separation ends a marriage in practice, but not in law. Until a divorce order is granted, the parties remain legally married. This distinction matters enormously if one spouse dies during the separation period.
A separated spouse who dies without changing their will may leave everything to the person they separated from — because the will was made during the marriage and never updated. Conversely, a separated spouse who dies intestate (without a will) leaves their estate to be distributed under the intestacy rules, which include the legal spouse regardless of the state of the relationship at the date of death.
The surviving legal spouse, even one who was estranged for years, generally retains intestacy rights unless they were living separate and apart in circumstances constituting permanent separation. The threshold for excluding a separated spouse from intestacy is high, and the outcome can be deeply unjust to children from the marriage or a new common-law partner.
The practical lesson for anyone who separates: update your will and your beneficiary designations immediately. Divorce revokes gifts to a former spouse in a will and their appointment as executor; separation does not.
When a married person dies without a separation agreement addressing property rights, the surviving spouse faces a choice. They can accept what they receive under the deceased's will (or under intestacy if there is no will), or they can elect to receive their equalization entitlement under the Family Law Act — the same calculation that would apply on marriage breakdown.
This election must be made within six months of the grant of probate, and it is irrevocable. The analysis requires comparing the two outcomes: What does the will (or intestacy) provide? What would the equalization calculation produce? Which is larger? The answer depends on how much net family property was accumulated during the marriage and how much the deceased's estate is worth.
The Family Law Act election is most likely to be advantageous when the deceased's estate is large relative to the surviving spouse's assets, or when the will provides less than the spouse's equalization entitlement. It is typically not advantageous in short marriages or where the will already provides generously. Getting the analysis right within the six-month window requires both family law and estate law expertise — and the two must work together.
Part V of Ontario's Succession Law Reform Act allows dependants of a deceased person to claim support from the estate regardless of what the will says. The concept is parallel to support obligations during life — just as a spouse or parent has support obligations while alive, those obligations don't simply evaporate at death.
Eligible dependants include spouses (including common-law spouses who qualify), children, parents, brothers, and sisters of the deceased, provided they were actually dependent on the deceased for support or the deceased was under a legal obligation to provide support.
For spouses, dependency is largely presumed. For adult children, actual financial dependency must be established — which typically means the child was receiving support from the deceased before their death, or the deceased was under a legal obligation to pay child support. A child support order that was in effect at the date of death creates a clear dependency. A financially struggling adult child without a formal support order faces a more uncertain claim.
The six-month deadline from the grant of probate is strict. Courts rarely extend it. Anyone who might have a dependant support claim should get legal advice immediately after a death, not after the deadline has passed.
Dependant support claims and will challenges are independent — you can pursue one without the other, or both simultaneously. A dependant may accept the will as valid but argue it fails to provide adequate support. An heir may challenge the will's validity regardless of whether they have a separate support claim.
Common-law spouses in Ontario have fewer rights than married spouses in both family law and estate law — and the interaction between the two frameworks can produce unexpected results.
In family law, a common-law spouse has no entitlement to property equalization. They may have claims based on unjust enrichment or constructive trust — claims that they contributed to property owned by their partner and should be recognized as having a share — but these claims must be proved, and they are not automatic.
In estate law, a qualifying common-law spouse (three years of cohabitation, or a child together with a relationship of some permanence) has intestacy rights roughly equivalent to a married spouse's. But they cannot make the Family Law Act election, because that election is only available to married spouses.
If the common-law relationship ends and the partners separate — without marrying — there are no automatic property rights for either party. If one then dies, the survivor may have a dependant support claim if they were financially dependent, but no property entitlement. This is a significant gap relative to married couples, and it motivates many common-law partners to marry precisely for the legal protections marriage provides.
Real estate and financial accounts held in joint tenancy with right of survivorship pass directly to the surviving joint owner on death, outside the estate and outside the will. This is a common estate planning strategy used to avoid probate and ensure smooth transfer of the family home.
But joint ownership has family law implications that are frequently overlooked. Property held jointly during a marriage is treated differently than separately owned property in an equalization calculation. Adding a child to title as a joint tenant — often done for convenience or to assist with banking — can trigger gift tax consequences and affect the child's own family law position if they later separate from their own spouse. The presumption of resulting trust may arise: did the original owner intend a gift, or merely convenience? The answer affects who actually owns the property.
These intersections between property planning, estate law, and family law require careful analysis before joint ownership is created, not after a death or separation reveals the problem.
Business owners who engage in estate freezes — complex tax planning structures that transfer future growth of a business to the next generation — can inadvertently affect their matrimonial property position. Shares created through an estate freeze may be treated differently than the original business interest for equalization purposes, and the timing of the freeze relative to separation can significantly affect both parties' net family property calculations.
Similarly, inheritance received during a marriage may be excluded property under the Family Law Act — but only if it's kept separate and traceable. An inherited asset that's commingled with marital assets, or used to purchase the matrimonial home, loses its excluded status. The interaction between inheritance, excluded property, and equalization requires careful planning both when the inheritance is received and if the marriage later ends.
Cases that involve both family law and estate law dimensions — a death during separation, a dependant support claim with family law context, a dispute about jointly held property that requires analysis in both frameworks — require a lawyer who is comfortable in both areas. John Sheard practices in both family law and estates, which means clients facing these intersecting issues receive integrated advice rather than having to coordinate between separate practitioners who may not fully understand each other's analysis.
At Sheard Law, we handle matters where family law and estate law intersect — from Family Law Act elections to dependant support claims to disputes about jointly held property at separation or death.
Contact Sheard Law today to schedule a consultation. Call 416-860-9990 or use our online intake form.
This article provides general information about the intersection of family law and estate law in Ontario. It is not legal advice. For advice about your specific situation, consult with a qualified lawyer.
