Institute for Divorce Financial Analysts™ (IDFA)

Mills & Mills LLP: Meghan O'Neil

Rights of a surviving spouse against the estate of his or her deceased spouse

By Meghan O'Neil

In my last blog, I outlined the rights a common law partner has against the estate of his or her deceased partner.

As mentioned in that blog, a common law partner’s right against his or her partner’s estate is limited to a dependant’s relief claim or unjust enrichment claim. While a married spouse can also make such claims, a spouse has other options available to him or her as well. If a spouse is not satisfied with his or her gift(s) under his or her spouse’s Will, or if the spouse dies without a Will, the surviving spouse can make a claim for an equalization payment from the estate of the deceased spouse. This means if the net family property of the deceased spouse exceeds the net family property of the surviving spouse, the surviving spouse is entitled to one-half of the difference between his or her net family property and the net family property of the deceased spouse.

If a spouse dies without a Will, the surviving spouse has another option available to him or her: inheriting under Part II of the Succession Law Reform Act (“SLRA”). This part of the SLRA provides that a surviving spouse is entitled to the first $200,000 of his or her deceased spouse’s estate when the spouse dies without a Will (otherwise known as “intestate”). This is called the spouse’s “preferential share” and it is prescribed by regulation. Moreover, if the deceased spouse had no children, then the surviving spouse inherits the deceased spouse’s entire estate. If the deceased spouse had a child or children, and the estate is worth $200,000 or less, the surviving spouse will still inherit the entire estate. If the estate is worth more than $200,000, and the deceased spouse had one child, the surviving spouse and child will split the remainder of the estate over $200,000 in half. If the deceased had more than one child, the spouse will get his or her preferential share of $200,000, along with one third of the remaining Estate funds.

Essentially, a surviving spouse has a number of options. If a spouse dies with a Will, the surviving spouse can choose whether to take under the Will, or take the equalization payment. If a spouse dies without a Will, the surviving spouse can choose whether to take the equalization payment or inherit under Part II of the SLRA.

If your spouse has died with or without a Will and you want to know your legal entitlements to his or her estate, please feel free to contact us at Mills & Mills by emailing us or calling 416-863-0125.

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