Prior to the Accelerating Access to Justice Act (the “AAJA”), the spouse of a person who died intestate would be entitled to the deceased’s property absolutely. This was an issue for people who died intestate while they were separated from their spouse as the spouse would be entitled to their estate despite the presumed breakdown in the relationship that caused the separation.

The AAJA introduced Section 43.1 to the Succession Law Reform Act (the “SLRA”), which provides that a spouse is no longer entitled to the deceased’s estate if the deceased and spouse were separated at the time of death among other criteria.

However, there is a certain irony in the name “Accelerated Access”, as Section 43.1 (2)(a)(i) of the SLRA provides that the spouse and the deceased need to have been separated for at least three years before the date of death barring some kind of separation agreement or court order in place after the AAJA came into effect.

Although limiting the entitlement of a separated spouse is a positive move, the AAJA sets a high bar for its application. This certainly highlights the need for properly drafted testamentary documents.