Barrister & Solicitor

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CONTACT
FAMILY LAW:
Marriage or Cohabitation
Agreements
Marriage Breakdown or Breakdown of a Common Law Spousal or Same-Sex Partner Relationship
Conclusion/Disclaimer
WILLS & ESTATES:
Wills
Probate Taxes
Intestacy
Rights of Surviving Spouse & Dependants
Conclusion/Disclaimer
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Wills & Estates: Rights of a Surviving Spouse and Dependants

1. Rights of a Surviving Spouse to Property

In Ontario, pursuant to Section 5 of the Family Law Act, a surviving spouse is entitled to 50% of the difference between the respective “net family properties” of the surviving spouse and the deceased spouse. For these purposes, a “spouse” is only a married spouse. “Net family property” is the value of all property owned by each spouse as at the date before the date of death (the applicable “valuation date” in these circumstances), less the amount of liabilities as at this date, less the net value of property owned on the date of marriage, less the value of property owned on the date before the date of death from or that can be traced to an inheritance or gift from a third party received during the marriage. This calculation is completed for each spouse. To the extent that there is a difference between the net family properties, that difference is “equalized”. For more detail regarding this calculation, see the discussion in the family law section of this website.

A surviving spouse has the right to elect not to take his or her entitlements as contemplated by the will of the deceased spouse, and to, instead, receive the entitlements under Section 5 of the Family Law Act. If this election is made, the gifts made to the surviving spouse in the will of the deceased spouse are revoked, and the will is interpreted as if the surviving spouse had died before the deceased spouse, unless the will expressly provides that the gifts are in addition to the entitlements considered above. Note also that proceeds of life insurance or of an RRSP/RRIF that have been paid to the surviving spouse will be deducted from the amount of any equalization payment calculated to be owing. Any decision to make this election should be made very carefully.

This election must be made within six months after the death of the first spouse, in the prescribed form. If the election is not filed, the surviving spouse is deemed to have elected to take under the will.

A spouse’s entitlement under Section 5 of the Family Law Act has priority over any gifts made in the deceased spouse’s will (in most cases), a person’s rights to a share of the estate under the law of intestacy, if applicable, and an Order made against the estate for support of a dependant, unless the Order is in favour of a child of the deceased spouse.

No distribution may be made in the administration of a deceased spouse’s estate within the first six months following the spouse’s death or in the administration of a deceased spouse’s estate after an application for equalization of net family properties has been received, unless the surviving spouse consents or the Court authorizes the distribution. A breach of these prohibitions may result in the personal representative being personally liable to the surviving spouse. Finally, the surviving spouse has the ability to ask for an Order suspending the administration of the estate for the time and to the extent that the Court decides.

2. Rights of a Surviving Spouse to Possession of a Matrimonial Home

A matrimonial home is defined by the Family Law Act to be “every property in which a person has an interest and that is or, if the spouses have separated, was at the time of the separation ordinarily occupied by the person and his or her spouse as their family residence”. Only married spouses may have a matrimonial home. When one spouse dies, the surviving spouse is entitled by the Family Law Act to possession of the matrimonial home for a period of sixty days following the death of the first spouse. Of course, this basic entitlement can be improved upon by virtue of ownership, the terms of a marriage contract, or the terms of the will of the deceased spouse.

3. Rights of Dependants to Support

A “dependant” is defined in Part V of the Succession Law Reform Act as meaning:

  1. the spouse or same-sex partner of the deceased,
  2. a parent of the deceased;
  3. a child of the deceased; or
  4. a brother or sister of the deceased, to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death.

A “spouse” for these purposes includes a common-law spouse.

Regardless of whether the deceased person dies with a will or intestate, if he has not made adequate provision for the proper support of his dependant(s), the Court may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependant(s).

An application for the support of a dependant must be made no later than six months from the grant of probate or of letters of administration, as the case may be. Because the granting of probate or of letters of administration, as the case may be, is the event that starts the clock ticking for this limitation on claims, it may be that an estate should be probated in certain circumstances for this reason alone, regardless of any competing priority that costs should be minimized.

The factors that are relevant to determining the amount of support payable to a dependant are very similar to those that are relevant to an award of child or spousal support, as considered in the family law section of this website.

4. Obligations in a Domestic Contract or Court Order that Survive Death

In many circumstances, the spouses in a second marriage will complete a marriage contract. Often this contract will provide for entitlements in favour of the surviving spouse. For example, such entitlements might include rights: 1) of possession to a matrimonial home after the death of a spouse (exceeding those contemplated by the Family Law Act); 2) to purchase the interest of the deceased spouse in the matrimonial home from the estate; or 3) of proceeds of life insurance. Any obligations reflected in the terms of a marriage contract are usually stated to be binding upon the respective estates of the parties to the marriage contract.

Likewise, when spouses separate, they usually complete a written separation agreement that resolves issues arising from their marriage and its breakdown. If there is an obligation of support in the separation agreement, the payor of such support is usually required to maintain the recipient of such support as the beneficiary of his policy of life insurance. If such insurance is not in good standing at the date of the payor’s death, the recipient may have a charge upon the estate of the deceased. Similar kinds of obligations may be reflected in the terms of a Court Order.

In most cases, these obligations must be satisfied as debts of the estate, and will take priority over distributions contemplated by the terms of the will. As a result, all of these potential obligations and their implications should be fully canvassed prior to finalizing the plan and terms of a draft will, to ensure that the will’s administration is likely to unfold as intended.