When an individual dies without a will (an “intestacy”), the law dictates how his or her estate is to be divided.  For today’s blog, I want to address what entitlement the surviving spouse might have.  

When determining what a spouse is to receive, the first question to ask is whether the couple was legally married or not.  In a previous blog I did about the author Stieg Larsson’s estate, I discussed what rights a common law (i.e. unmarried) partner might have.  So, here, I’m going to focus on the entitlement of a surviving married spouse.

Part II of the Succession Law Reform Act ("SLRA") governs intestate succession.  When an individual dies and is survived by a spouse and no children, then the surviving spouse (“survivor”) is entitled to the entire estate. 

When there are children, the survivor is entitled to receive the “preferential share” of the estate (in Ontario, this is currently $200,000) – everything over and above the preferential share is then split between the survivor and the deceased's children (when there is one child, the survivor and the child split the excess 50/50; when there is more than one child, the survivor receives 1/3 of the excess and the children split the remainder).  

The survivor also has rights under s. 5(2) of the Family Law Act (“FLA”), which provides that where the deceased’s net family property exceeds that of the survivor, the survivor has the right to equalize net family property.  Note, however, that the survivor must choose whether to equalize under the FLA or inherit under the SLRA – he or she can’t do both.     

Finally, in situations where it appears that neither an equalization of net family property or an inheritance pursuant to the intestacy rules will be sufficient to meet the survivor’s financial needs, he or she might have a claim for dependant relief under Part V of the SLRA. 

Word to the wise – claims under both Part V of the SLRA and s. 5 of the FLA carry tight limitation periods (for example, the right to elect under the FLA expires six months after the deceased's death).  Accordingly, in situations where either might apply, the survivor should seek legal advice soon after the deceased’s death.