How a Prenup Interacts With Your Will — Death Provisions Explained

Every marriage ends one of two ways: separation or death. A prenup is designed to address both. Most people only think about the first. Understanding how a marriage contract interacts with your will, your estate, and your surviving spouse's legal rights at death is the part of prenup planning that almost nobody considers — and the part that matters most for blended families, second marriages, and anyone with assets they intend to pass to children.

A marriage ends two ways — and a prenup covers both

Under Ontario's Family Law Act R.S.O. 1990, c. F.3, the equalization of net family property is triggered by two events: separation and death. Every provision in a marriage contract that defines how assets are divided at separation also governs what happens at death.

Under FLA s. 5(2), when a spouse dies while still married, the surviving spouse has the right to claim equalization of net family property — the same calculation that applies at separation. Under FLA s. 6(1), the surviving spouse must elect within six months between taking equalization under the Family Law Act or taking what's left under the will or intestacy rules. Without a marriage contract, this election belongs entirely to the surviving spouse — and they'll choose whichever outcome gives them more.

A marriage contract can waive or limit this equalization claim on death. It can also set a defined package for the surviving spouse — a lump sum, life interest in the home, a specific percentage of the estate — so the outcome is predictable rather than dependent on a court calculation made after the fact.

The practical implication: if your marriage contract protects your pre-marriage condo equity from equalization at separation, it also protects that equity if you die. If your contract limits your spouse's property rights to a defined amount, those limits apply on death as well as divorce. The will doesn't override this — it executes within the framework the contract sets.

How the prenup and will work together — and what happens when they conflict

The prenup and the will are not the same document and they do different things. A prenup is a contract that defines what your spouse is entitled to claim from your estate. A will distributes what remains after those entitlements are satisfied. They need to be drafted consistently, with each document knowing what the other says.

If there is a will: The court reads the prenup and the will side by side. Property specifically addressed by the prenup — "Spouse A waives any share of Spouse A's business interests" — is governed by the contract first. The will then distributes what the contract hasn't allocated, within the limits the contract sets. If the will promises something the prenup already allocated elsewhere, that gift may fail.

If there is no will: Ontario's intestacy rules under the Succession Law Reform Act give the surviving spouse a substantial automatic share. A valid marriage contract can be evidence that the spouse agreed to something different — limiting that intestacy share — though the litigation risk is significantly higher without a will to implement the prenup's structure. Dying without a will while holding a marriage contract is avoidable with basic estate planning.

If the documents conflict: The prenup as a contract typically takes priority where it speaks clearly, because both parties relied on it and it was a condition of the marriage. A later will that attempts to give the spouse assets the prenup already protected for children will likely fail for those assets. Courts have to untangle intent, and the result is usually expensive litigation between the surviving spouse and the children — which is exactly what both documents were supposed to prevent.

The practical rule: treat the prenup as the ground rules and the will as the execution plan. The will should be drafted by an estates lawyer who has read the marriage contract, knows what it promises and what it waives, and ensures every specific bequest is consistent with those terms.

What death provisions in a prenup actually do

A well-drafted marriage contract includes specific death provisions — not just separation provisions — that address four things:

When the clause applies. The death provisions apply if one spouse dies while the parties are still married and no separation or divorce proceeding is pending. Once separated, the separation provisions govern.

What the surviving spouse is entitled to receive. A defined package: the right to occupy the matrimonial home for a specified period, a lump sum, a percentage of the estate, or a life interest in specific assets. This replaces the floating equalization claim with something predictable and specifically agreed. The will then implements this package as a specific bequest or trust.

What the surviving spouse waives. Beyond the defined package, the spouse waives any further equalization claim or inheritance rights under provincial family law. This is the clause that protects assets intended for children from prior relationships — the cottage, the business, the family investments.

The limits of what can be waived. A death waiver is not absolute. Under s. 57(1) of the Succession Law Reform Act, courts retain discretion to order support from the estate for a surviving spouse who would otherwise be left without adequate provision — dependant's relief legislation exists in every province and cannot be fully contracted away by any contract. A marriage contract that leaves a surviving spouse with nothing while the estate is substantial will face this challenge regardless of what was signed.

Non-probate assets — the gap most people miss

A marriage contract and a will govern probate assets — property that passes through the estate. But a significant portion of most people's wealth passes outside the estate entirely, through beneficiary designations:

• RRSPs and RRIFs with a named beneficiary
• TFSAs with a named successor holder or beneficiary
• Life insurance proceeds
• Workplace pension survivor benefits

These assets pass directly to the named beneficiary regardless of what the will or the prenup says. If an RRSP names a previous spouse as beneficiary, or if a life insurance policy names a parent instead of the current spouse, the marriage contract and will are irrelevant to those assets.

Coordinating non-probate assets is a separate step: review and update all beneficiary designations when you sign the marriage contract, and again after any major life change. The prenup sets the contractual framework; beneficiary designations execute the actual transfer for these assets. They must point in the same direction.

Why blended families and second marriages need both documents aligned

For blended families and second marriages, the stakes are highest — and the consequences of misalignment are most severe.

The core tension: a new spouse may be entitled under provincial law to a substantial share of the estate at death, while children from a prior relationship have their own expectations about inheritance. Without a coordinated prenup and estate plan, the surviving spouse's statutory rights — equalization, intestacy share, dependant's relief — can override what the deceased intended for their children, regardless of what the will says.

What aligned documents accomplish in a blended family:

The prenup defines the structure. It labels specific assets as separate property intended for children — the premarital home, the family business, inherited investments. It defines the surviving spouse's package: life interest in the home, a lump sum, or a defined percentage. Both spouses sign knowing the rules.

The will executes the structure. The will implements the promised spousal package as specific bequests or a spousal trust — lifetime income, then capital to children. The "children's inheritance" assets pass under the will to the children, protected from equalization by the contract's waiver.

Beneficiary designations complete the picture. RRSPs, TFSAs, and life insurance are updated to reflect the agreed structure. If the prenup promises the spouse life insurance proceeds as part of their defined package, the insurance policy must name them.

When these three are coordinated, the outcome is predictable and largely litigation-resistant. When they're not coordinated — and most blended families' aren't — the surviving spouse's statutory rights can swallow assets intended for children, and the children sue the estate. Ontario and BC practitioners consistently identify uncoordinated prenups and wills as the single most common cause of blended-family estate disputes.

What to update after signing a marriage contract

Signing a marriage contract triggers a checklist:

Update your will immediately. A marriage contract and a will drafted independently may be inconsistent. Have an estates lawyer read the contract before drafting or revising the will. Marriage in Ontario can revoke a previous will unless it was made in contemplation of that specific marriage — if you had a will before the wedding, it may no longer be valid.

Update all beneficiary designations. RRSPs, TFSAs, life insurance, pension plans. These pass outside the will and outside the contract — they need separate attention.

Review powers of attorney. Your power of attorney for property and personal care should be consistent with the assumptions in the prenup.

Build in review triggers. Major life events — birth of children, significant wealth changes, moving provinces, receiving a substantial inheritance — can make an existing structure unfair or unworkable. A review clause in the marriage contract and a commitment to revisit both documents at those triggers reduces vulnerability.

For the full picture on what a marriage contract covers under Ontario's Family Law Act, including the full list of what can and cannot be addressed, that article covers the legal framework in detail.

Frequently Asked Questions

Does a prenup override a will in Ontario?

Not exactly — the prenup and will operate in layers. A marriage contract defines what your spouse is contractually entitled to claim from the estate. The will distributes what remains. Where the prenup speaks clearly about specific assets or rights, it typically takes priority over contradictory will provisions for those assets. The will still controls everything the prenup doesn't address. They should be drafted to be consistent, not competing.

What happens to a prenup when a spouse dies without a will?

Ontario's intestacy rules give the surviving spouse a substantial automatic share. A marriage contract that clearly waives or limits those rights can be evidence that the spouse agreed to something different — potentially limiting the intestacy share. But the litigation risk is significantly higher without a will implementing the contract's structure. Dying without a will while holding a marriage contract is a common and avoidable planning gap.

Can a prenup protect assets for children from a prior relationship?

Yes — and this is one of the most important uses of a marriage contract in blended families and second marriages. The contract can label specific assets as separate property intended for children, waive the new spouse's equalization claim against those assets at death, and define a fair but limited package for the surviving spouse. The will then implements this structure. Courts will generally respect clearly drafted, fairly balanced provisions made with proper disclosure and ILA.

Can a surviving spouse challenge a prenup death clause?

Yes — through dependant's relief under Ontario's Succession Law Reform Act s. 57(1). Courts retain discretion to order support from the estate for a surviving spouse left without adequate provision. A death clause that leaves the surviving spouse with nothing while the estate is substantial will face this challenge. The strongest death clauses include a reasonable defined package for the survivor rather than attempting a complete exclusion. See what makes a prenup enforceable in Canada for the full enforceability picture.

Do RRSPs and life insurance pass under the prenup?

No — RRSPs, TFSAs, life insurance, and pension survivor benefits with named beneficiaries pass directly to the named person outside the estate, regardless of what the prenup or will says. Beneficiary designations are a separate and essential step. If the prenup allocates specific assets to children and the RRSP still names the spouse as beneficiary, the RRSP goes to the spouse. Review and update all beneficiary designations when the marriage contract is signed.

How does this work in BC compared to Ontario?

The mechanism differs significantly. In Ontario, equalization on death is the key trigger — a marriage contract can waive the surviving spouse's equalization claim under FLA s. 5(2). In BC, the Wills, Estates and Succession Act (WESA) s. 60 gives a surviving spouse the right to apply to vary a will that doesn't make "adequate provision" — and whether a marriage agreement can waive this wills variation right is genuinely uncertain under BC law. The Tataryn v. Tataryn Estate [1994] 2 SCR 807 framework applies independently of any contract. The practical implication: a marriage contract's death provisions work more predictably in Ontario than in BC, where an estates lawyer's input is especially important.

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This article provides general information about Ontario family law and estate planning and does not constitute legal advice. Laws vary by province. For advice specific to your situation, consult both a licensed Ontario family lawyer and an estates lawyer.