When a spouse dies, individuals are often left unsure of their rights.  Whether there is a Will and you have been left with nothing, or there was no Will and you need to ensure that you get what you deserve, there is legislation in place to protect you.

1. What happens if your spouse dies with a Will?

Section 5 of the Family Law Act, states that when a spouse dies, the surviving spouse is entitled to an Equalization of the net family property. The practical effect of this is that the surviving spouse gets the share that they would have been entitled to if they had gotten divorced rather than if one spouse had died.

Section 6(1) of the Family Law Act presents the surviving spouse with a choice: where there is a Will, the surviving spouse can either take what they are given in the Will or decide to take what they are entitled to under Section 5 of the Family Law Act.

2. What happens if your spouse dies without a Will?

When a spouse dies without a Will, Part II of the Succession Law Reform Act states what a spouse is entitled to receive: a surviving spouse is entitled to receive the first $200,000.00 of the estate, this is called the “Preferential Share” of the Estate.  In addition to the Preferential Share, the surviving spouse is entitled to the following:

  • If 1 child: one-half of what is remaining after the Preferential Share (i.e. the “Residue”); and
  • If 2 or more children: one-third of the Residue

Section 6(2) again leaves the surviving spouse with a choice: where there is no Will the surviving spouse can either:

  • Elect to Equalize the net family property; or
  • Elect to take the Preferential Share plus their portion of the Residue.

3. Considerations for Common Law Spouses

It is important to note that this is not available to Common Law couples. As such Common Law couples should:

  • Make sure they have a Will in place; and/or
  • Sign a Cohabitation Agreement, which will specify how property will be dealt with in the event of the death of one spouse, and what the couple agrees will not happen.

4. Considerations for Separated Spouses

Furthermore, the above-mentioned elections are still applicable if the spouses have been separated for a length of time. As such it is important to either:

  • Get a legally binding Divorce, or
  • a legally binding Separation Agreement.

To find out more about how to protect yourself or your spouse contact us by phone at 905-471-6161 or email us at info@eruditelaw.com.

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