My Separation Agreement Says We Waive Inheritance — Do I Still Need a Will? | Chinese-Speaking Divorce Lawyer in Markham

Yes. A separation agreement is not a will. A mutual waiver of spousal inheritance rights may not even stop your ex — let alone give a single dollar to your children. To leave everything to your kids, you need a separate will, spelled out.

1. A Separation Agreement Is Not a Will

A separation agreement is a contract between two people. It governs how property is divided while you are alive. A will is a unilateral document. It governs who gets what after you die. Different purposes — neither substitutes for the other.

A will has formal requirements: in writing, signed, two witnesses. No matter how detailed the separation agreement is, a court will not treat it as a will.

2. A “Mutual Waiver” May Not Even Stop Your Ex

Many people assume a line in the agreement — “both spouses waive inheritance rights” — keeps the ex away from the estate. It does not.

In real life, a common story is: separated, never divorced, someone dies, and the estate fight happens anyway. The ex comes back under a different claim, and the litigation goes ahead. One sentence in an agreement does not stop someone determined to fight.

So the clause neither distributes your estate nor reliably blocks your ex. It fails on both ends.

Die without a will and the estate goes through intestacy: someone must apply to administer it. If your children are minors, your ex can apply to manage the children’s share — and the money ends up in your ex’s hands. When the children come of age and the money is never handed over, few of them will go after their own parent.

3. Since 2022, a Separation Agreement Does More — But Not Enough

Ontario amended the Succession Law Reform Act in 2022: where there is a valid separation agreement, a separated spouse is treated as having predeceased the testator, so gifts to them in an old will are revoked.

But this rule is new — it came in 2022 — and courts are still working out how to apply it. When a real fight breaks out, the ex can still litigate. And it only crosses your ex out; it does not write your children in. Who gets what, how much, and who manages the money until the children grow up — that still has to be spelled out in your own will.

4. Beneficiary Designations Are Not Changed by the Agreement

If your life insurance, RRSP, or TFSA still names your ex as beneficiary, the waiver clause in the separation agreement does not change that. Beneficiary designations must be updated one by one with the insurer or the bank.

This is the step most people miss.

What to Do

Remember: separated is not divorced. Until the divorce is final, your ex is still your legal spouse — and that uncertainty hangs over the estate.

After signing the separation agreement, make a separate will: spell out who gets what, how much, and who manages the money while the children are minors.

Review and update every beneficiary designation: life insurance, RRSP, TFSA.

Review any old will: if it was made during the marriage and names your ex, revoke it and make a new one.

A will is not once-and-for-all: update it when your assets or your children’s circumstances change.

Questions about a separation agreement that waives inheritance, and whether you still need a will? Book an initial consultation (30 minutes, $220+HST). Call 647-930-6688.

This article is general legal information, not legal advice, and does not create a lawyer-client relationship.