1. Learn what happens if you’re married but separated

If you die without a will, the intestacy rules give property to married partners and biological and adopted children.

The rules used to treat married partners the same whether they were together or separated. They could get their share of the surviving partner's estate.

This changed on January 1, 2022. Since then, if you're married but separated from your partner, they get nothing from your estate if one of the following is true:

• You separated on or after January 1, 2022. And you had been separated for at least 3 years, and were still separated, before you died.
• You're separated and you got a separation agreement, arbitration agreement, or court order that resolves all your family law issues on January 1, 2022, or later.

This new rule applies whether or not you have a will. It does not apply to common-law partners.

Separated and get property

If you're separated, your married partner can still get a share of your estate when you die in certain situations. They can get a share if, for example, you:

• separated before January 1, 2022, and
• do not get a legal document that resolves your family law issues on or after January 1, 2022.

Or if you separated on or after January 1, 2022, and:

• are separated for less than 3 years, or
• do not get a legal document that resolves your family law issues on or after January 1, 2022.

Talk to a lawyer if you do want your married partner to get property from your estate even if you're separated.

Equalization payment

Being separated before you die may not affect the equalization payment your married partner may be able to get in family law.

Usually, if you die without making a will, your married partner can decide whether to take what they get:

• under the intestacy rules, or
• with an equalization payment in family law.

The question We’re married. What happens to my partner’s property if they die? explains what an equalization payment is, how it's calculated, and the deadline to make a claim.

Other claims

Your married partner who you're separated from may be able to make other claims. They may bring a claim against the estate or a claim for dependant’s support against your estate.

Designated beneficiaries

Being separated does not affect the rules about designated beneficiaries.