Most people think of a prenup as a divorce tool. But in Ontario, a marriage contract doesn’t just apply when a marriage ends by separation. It also applies when a marriage ends by death.
Understanding how your prenup and your will interact is essential. If they contradict each other, the results can be messy, expensive, and deeply unfair to the people you intended to protect.
What Happens Without a Will or a Prenup
If a married person dies without a will in Ontario (called dying “intestate”), the Succession Law Reform Act determines how their estate is distributed. The surviving spouse receives a preferential share (currently $350,000 as of 2022 legislation), and the remainder is divided between the spouse and any children.
If the deceased had no children, the surviving spouse receives the entire estate. These default rules may or may not align with the couple’s actual intentions. A will lets you override these defaults. A prenup can too, but in a different way.
How a Prenup Affects Estate Rights
Under Ontario’s Family Law Act, a surviving spouse has the right to elect between what they receive under the will (or the intestacy rules) and their equalization entitlement under the Family Law Act. This is called the “election” right.
In plain terms: when a married person dies, the surviving spouse can either accept what the will provides, or reject the will and claim equalization instead, whichever gives them more money. This election right exists to prevent a spouse from being disinherited.
A marriage contract can address this election right. You can include a clause where both partners waive their right to elect against the other’s will. This means each partner agrees to accept whatever the will provides, rather than pursuing equalization. This is a powerful provision, and it requires careful drafting and full understanding from both parties.
Why Your Prenup and Will Must Work Together
Here’s where it gets complicated. If your prenup says your partner waives their right to claim equalization on death, but your will leaves everything to your children from a previous relationship and nothing to your partner, the result could be deeply unfair, especially if your partner contributed significantly to the marriage.
Conversely, if your will leaves everything to your spouse but your prenup specifies that certain assets are excluded from equalization, there may be confusion about what the spouse actually receives.
The solution is coordination. Your prenup and your will should be drafted with awareness of each other. Ideally, the same financial picture informs both documents, and the terms are consistent. If you have a prenup, mention it in your will. If you have a will, reference it in your prenup.
Blended Families: Where This Matters Most
The intersection of prenups and wills is most critical for blended families. If one or both partners have children from a previous relationship, the financial interests of the new spouse and the existing children can conflict directly.
A well-coordinated prenup and will can specify that the surviving spouse receives a certain amount or retains the right to live in the family home for their lifetime, while the underlying assets eventually pass to the deceased partner’s children. Without both documents working together, the surviving spouse might inherit everything (cutting out the children) or the children might inherit everything (leaving the spouse with nothing).
Practical Steps
Create your prenup and your will at the same time, or at least within the same planning period. Use the same financial disclosure for both documents. Tell your estate lawyer about your prenup, and tell your family lawyer about your will. Review both documents after major life events: children, property purchases, inheritances, or significant income changes.
Both documents are part of a single financial plan for your future. For more on why prenups are about much more than divorce, read Why Prenups Are the Ultimate Act of Financial Self-Care.
Start planning for your future together. Build your marriage contract at I Do Prenup.
Frequently Asked Questions
Q: Does a prenup replace a will?
No. They serve different purposes. A prenup governs your financial relationship during marriage and at separation or death. A will governs how your estate is distributed after death. Both are needed.
Q: Can a prenup prevent my spouse from contesting my will?
A prenup can include a clause where both spouses waive their right to elect against the other’s will under the Family Law Act. This must be drafted carefully and with full understanding from both parties.
Q: What is the surviving spouse’s election right in Ontario?
When a married person dies, the surviving spouse can choose between what the will provides and their equalization entitlement under the Family Law Act, whichever is greater.