Canada: 7 Estate Planning Tips For Spouses

Last Updated: August 2 2019
Article by Ashley Doidge

Estate planning is inarguably one of the most important things you can do for yourself and your family. Not only can estate planning legally protect your spouse and assets, it can also instruct others on exactly how you would like things handled after your death.

  1. Make a Will

If you die without a will, the provincial government decides how your assets will be distributed under intestacy rules.

Many people incorrectly assume that if they die without a will their estate would pass to their spouse. This is not necessarily the case. In Ontario, for a spouse to inherit from your estate they must be married to you [common law spouses do not automatically inherit under intestacy rules!].

If you have children, your spouse will receive a "preferential share" up to $200,000 worth of your assets. The remainder of your estate will be divided as follows:

  • If you have one child, your child and spouse will split the remainder.
  • If you have more than one child, your spouse receives one third, and your children will split two thirds equally.

Making a valid will prevent the intestacy laws above from taking effect as well as providing additional benefits.

  1. Update Your Will Regularly

They say the only thing worse than dying without a will is dying with an outdated will.

If any of the following have occurred since your last will we highly recommend you consider updating your will:

  • birth of new child;
  • birth of grandchildren;
  • beneficiaries may be irresponsible with money and may require funds to be held in a trust;
  • death of your named executor or inability of that executor to serve.
  1. Consider Making a Secondary Will to Lower Probate Taxes

Probate taxes paid to the Government in Ontario are among the highest in Canada.

Since the landmark case of Granovsky v. Ontario was decided in 1998, lawyers have been recommending that certain clients consider making a secondary will which deals with assets that do not need to be probated (such as shares in a corporation or an art collection). The end goal of the secondary will may result in substantial minimization of probate taxes.

What is probate?

In Ontario, many executors are required to go through a legal process where the court confirms the validity of the will and the executors' authority to act on behalf of the estate, this is known as probate. This process is usually required where the deceased owned real estate or bank accounts with substantial amounts of funds.

When a will is probated, probate taxes (also known as Estate Administration Fees) are triggered for the assets dealt with in the Will.

  1. Make a Power of Attorney for Personal Care

A Power of Attorney for Personal Care is a legal document in which you designate the person or people who will make personal care and treatment decisions for you if you become incapable. This document can be used to ensure that your wishes about personal care decisions will be respected

  1. Make a Continuing Power of Attorney for Property

A Continuing Power of Attorney for Property is a legal document in which you can designate a person or people to act on your behalf with respect to your property and financial affairs.

If you become unable to make decisions about your property and you have not made a Power of Attorney for Property, it is difficult for your family to access your assets and manage them for your benefit. Instead, someone must apply to the court for permission to be your representative or a guardian must be appointed by the Office of the Public Guardian and Trustee

  1. Consider Transferring Title in Your Home into "Joint Tenants with Right of Survivorship"

Your home can be held by two or more people in two ways: either as joint tenants or tenants in common.

Joint tenants implies an automatic right of survivorship. For example if A dies, A's 50% interest automatically passes through right of survivorship to B.

Tenants in common implies that each tenant owns a separate undivided interest in the property. For example if A dies, a 50% interest falls into A's estate and will be dealt with according to A's will or by the laws of intestacy, if A does not have a will.

If your home is held as Joint Tenants with Right of Survivorship, the home may not be subject to your Will and may pass outside of your estate. Thus your estate may not have to pay probate tax on the value of your home.

A transfer of title should only be considered after consulting with a knowledgeable lawyer and it is not appropriate in every situation.

  1. Consider Designating a Beneficiary for Specific Assets

A person can designate a beneficiary to receive the benefit of certain assets upon death (eg life insurance policies, RRSP, pension plans, TFSAs). When the person who designated a beneficiary dies, the benefits flowing from that asset will flow directly to the person named outside the deceased's estate (and not pass through the estate). Therefore, since the asset does not flow through the estate it may not be subject to probate taxes and creditor's claims. Another considerable advantage is that your beneficiaries will have nearly immediate access to funds following your passing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions