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Divorce in Ontario: Do I get his or her inheritance upon divorce? 647-680-9530

Toronto business lawyerDivorce in Ontario: a spouse’s entitlement to the other spouse’s inheritance

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to getting a divorce in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you.

A lot of people think they know the answer. They’re asked a very specific question and then simply blurt out something like “that’s how it’s done”. Unfortunately, these people are not lawyers and their “advice” is just plain wrong. Lawyers know that, most of the time, the answer is “it depends on your specific situation”. Legal answers aren’t always clear cut. They are based on an examination of the facts in light of the legislation, caselaw, policy, and other sources. At the end of the day, we make arguments to support conclusions. Our conclusions may not be right if the person making the decision (e.g. a judge or politician) doesn’t agree, but that’s how it work!

So, with all that ranting said and done, I move on to the question at hand: if someone wants to get a divorce in Ontario, are they automatically entitled to an inheritance their spouse received? The answer is “IT DEPENDS“.

Now before we get into what it depends on, I want to briefly explain how property and income from property are divided upon divorce. I’ve blogged previously about it here. It’s all about the equalization of net family property. So you should read that blog first before this one to get an understanding of what happens when couples divorce in Ontario.

OK, so going back to the original question: what does it depend on? I’ll go through some of things these and then you’ll get the point:

When was the Inheritance received?
If the inheritance was received before the marriage, it will not be included in “net family property”. Therefore, you won’t be entitled to it, plain and simple under divorce laws. You may be entitled to it if you don’t get a divorce and your spouse dies and leaves it to you as part of his or her estate. But, for the purposes of getting a divorce, if your spouse inherited lots of property and money before he or she got married to you, you could be out of luck.

Is there a Domestic Contract?
If the inheritance was received by your spouse during the marriage, then more questions arise. First, was there a Prenuptial Agreement or Marriage Contract entered into between the parties that addressed this situation (i.e. his or her inheritance either forming part of or being excluded from “net family property”?). Prenuptial Agreements (entered into before the couples get married in contemplation of their marriage) and Marriage Contracts (entered into by married couples) can modify the rights of married couples under the Family Law Act. They are private agreements which, if valid and enforceable, can govern things like how your spouse’s inheritance is to be treated.

Now, if there was a private domestic agreement which is enforceable and it reinforces the idea that your spouse’s inheritance (property, income from that property, etc.) won’t be included in “net family property” in case of a divorce, then you’re likely out of luck. It could say, however, that you’re supposed to include those things in the calculation. So it all depends on if such an agreement exists, is enforceable, and what it says.

What does the Act say?
OK, so if the inheritance was received DURING the marriage and there is NO domestic agreement to govern, you will need to look at the Family Law Act to determine your entitlements. Section 4(2) of the Act says what you DON’T include when calculating net family property. specifically, the value of property that was “acquired by gift or inheritance from a third person after the date of the marriage” is EXCLUDED! So too is income from that property, but only if the donor or testator (the person who died and made the Will) expressly stated that the income was to be excluded from the spouse’s net family property.

So there you have it: the Family Law Act excludes inheritances to a spouse made during the course of a marriage. Inherited property is excluded outright, whereas income from such property is excluded only if the person who gave it (i.e. the donor or testator) said that they didn’t want the income to be included in the recipient’s net family property.

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