Divorce can have a significant impact on the distribution of an estate. Subsection 17(2) of the Succession Law Reform Act provides that once a marriage is “terminated by a judgment absolute of divorce,” a testamentary gift to the testator’s former spouse will be revoked as if that spouse had predeceased the testator, subject to a contrary intention appearing in the testator’s will.
It is important to recognize, however, that a divorce does not take effect until 31 days after judgment is granted, as per subsection 12(1) of the Divorce Act. This means that the parties technically remain married until the intervening 31-day period elapses.
Where a Spouse Dies Before a Divorce Judgment Takes Effect
Accordingly, if a spouse dies after a divorce judgment is granted, but before it takes effect, the divorce will not be effective. As noted by the Ontario Court of Appeal in White v White, 2015 ONCA 647, under section 14 of the Divorce Act, a divorce will not dissolve a marriage until it takes effect. In this case, the husband obtained a divorce order and then passed away after the wife had the order stayed. Under these circumstances, the court held that the marriage was terminated by death rather than divorce, and that the divorce order was permanently stayed.
Testamentary Gifts Are Not Revoked Until a Divorce is Final
If a marriage is terminated by death after a divorce judgment is granted but before it takes effect, this can have significant consequences for the distribution of the deceased’s estate. Notwithstanding the divorce order, any testamentary gifts left to the surviving spouse will not be revoked, as held by the Ontario High Court of Justice in Re Kindl, 1982 CanLII 2049.
When this case was heard, there was a three-month waiting period between the granting of a decree nisi and a decree absolute for divorce. The Court confirmed that a testamentary gift left to a surviving spouse is unaffected by the issuance of a decree nisi, and that the issuance of a decree absolute dissolving the marriage is required to revoke any such gift. Justice White also held that the deceased’s understanding of his marital status could not change the legal result – even though the testator believed that he was divorced due to the decree nisi, the parties in fact remained married.
Can a Divorce Be Declared Effective Retroactively After a Spouse Dies?
While the terminology and statutory waiting period have changed since the High Court decided Kindl, the underlying concept largely remains the same – a marriage typically will not be terminated immediately once a divorce judgment is granted. However, under subsection 12(2) of the Divorce Act, a court does have the power to order that a divorce take effect before the usual 31-day period elapses. To exercise this power, two requirements must be satisfied – there must be special circumstances, and the spouses must agree and undertake that no appeal will be taken, or if an appeal has already been taken, it must be abandoned.
In light of subsection 12(2), an interesting question arises – if a spouse dies once a divorce judgment is granted, but before it takes effect, is it possible to obtain a court order terminating the marriage by divorce rather than by death?
This issue was recently considered by the Alberta Court of King’s Bench in Rapuano v Rapuano, 2026 ABKB 155. The wife in this case died after a divorce judgment had been granted but before the divorce took effect. Consequently, testamentary gifts that she had made to her husband were not revoked under Alberta’s Wills and Succession Act. In response, the wife’s son sought an order retroactively terminating the marriage by divorce, rather than by death.
The Divorce Waiting Period Can Only Be Abridged Before a Divorce Takes Effect
First, the son argued that the court could rely on subsection 12(2) of the Divorce Act to make the divorce judgment retroactively effective as of the date it had been rendered. The court rejected this argument, concluding that once a divorce judgment has been granted and the requisite 31 days have passed, the court cannot declare that the divorce took effect earlier. Justice Kubik explained that the court’s discretion to abridge the time it takes for a divorce to take effect can only be exercised during the period between the date that the divorce judgment was granted and the date it takes effect, “as this is the only timeframe within which both the marriage and the appeal period continue to endure.”
Justice Kubik also recognized a number of other reasons why the effective date of a divorce cannot be reconsidered once the general effective date of the divorce crystallizes, including:
- the question of whether the date should be abridged becomes moot;
- allowing the date on which the divorce takes effect to be reconsidered could lead to uncertainty if “a party could apply at any future date for a redetermination of the effective date of the divorce”; and
- it would render the requirement that the parties agree not to appeal meaningless.
Equitable Jurisdiction Cannot Overcome Statutory Requirements
The son also argued that the court could exercise its equitable jurisdiction under Alberta’s Judicature Act to declare the divorce effective before the wife’s death in order to address the unfairness produced by the interaction between subsection 12(2) of the Divorce Act and section 25 of the Wills and Succession Act. Again, Justice Kubik concluded that the court did not have the discretion to depart from the requirements imposed by subsection 12(2) of the Divorce Act, holding that the court’s equitable powers were constrained by the governing legislation and by the need for certainty in divorce proceedings.
With respect to the revocation of testamentary gifts on divorce, Justice Kubik agreed that the outcome was unfortunate for the wife’s children, who would have benefitted if the husband did not share in the estate. However, the court concluded that the current gap in the legislation which permits a surviving spouse to inherit, even after a divorce judgment has been granted, is a question for the legislature, rather than the courts.
The Impact of the 31-Day Waiting Period on Estates
As a general rule, if a spouse dies in Ontario after a divorce judgment has been granted, but before it takes effect, any gift left to the surviving spouse will not be revoked on the basis of the divorce judgment. While subsection 12(2) of the Divorce Act provides a mechanism for reducing the waiting period under specific circumstances, the court’s decision in Rapuano indicates that after the 31-day waiting period has elapsed, this provision cannot be used to change the date that a divorce takes effect. In other words, if a spouse dies before their divorce is final, it appears that subsection 12(2) cannot be used posthumously to change the date that the divorce takes effect in order to revoke testamentary gifts left to the surviving spouse.
Thank you for reading, and have a great week,
Suzana.