.jpg)
In this Part: Part 3, we will discuss what happens to your property if you are married, in a common law partnership or have children.
To recap, when you die without a Will, your estate is called an intestacy and you are said to have died “intestate”. The law in the province or territory in which you live will determine what happens to your property if you die intestate.
So let’s break it down by province and territory. If you die intestate while happily married, meaning not separated from your spouse, (and have no children nor grandchildren), then your entire estate goes to your surviving spouse in every province and territory in Canada;
If you die intestate while happily married and have children or a child, then your estate gets divided between your spouse and your child(ren). Your spouse is entitled to what is called the “preferential share”:
in Yukon, your spouse receives the first $75,000.00 of your estate as the preferential share AND the remainder is divided ½ to your spouse and ½ to your child, if you have one child. And 1/3 to your Spouse and the remainder is divided equally among your children if you have more than one child;
in Nunavut and Nova Scotia, your spouse receives the first $50,000.00 of your estate as the preferential share (and may elect to receive the family home instead) and the remainder is divided ½ to your spouse and ½ to your child, if you have one child. And 1/3 to your spouse and the remainder divided equally among your children if you have more than one child;
in Northwest Territories, your spouse receives the first $100,000.00 of your estate as the preferential share (and may elect to receive the family home instead) and the remainder is divided ½ to your spouse and ½ to your child, if you have one child. And 1/3 to your spouse and the remainder divided equally among your children if you have more than one child;
in New Brunswick, Prince Edward Island and Newfoundland and Labrador, if you have one child, your spouse receives ½ of your estate as the preferential share. If you have multiple children, your spouse receives 1/3 of your estate and the remainder is divided equally amongst your children;
in Ontario, your spouse receives the first $350,000.00 of your estate as the preferential share and the remainder is divided ½ to your spouse and ½ to your child, if you have one child. And 1/3 to your spouse and the remainder divided equally among your children if you have more than one child;
in Manitoba, if all of the children you have are with your surviving spouse, then your entire estate goes to your surviving spouse. If one or more of you children are not a child of your spouse, then your spouse receives the greater of $50,000 and ½ of the value of your estate as the preferential share and ½ of the remainder if divided equally amongst your children;
in Saskatchewan, if all of the children you have are with your surviving spouse, then your entire estate goes to your surviving spouse. If one or more of your children are not a child of your spouse, then, if your estate does not exceed $200,000.00 (the preferential share), your spouse receives your entire estate. If the value of your estate is greater than $200,000.00, then your spouse receives the greater of $200,000.00 and ½ of your estate of your estate and the remainder is divided ½ to your spouse and your child (if you have one child). If you have more than one child, then 1/3 of the remainder (after the preferential share is paid to your spouse) goes to your spouse and the remainder divided equally among your children if you have more than one child;
in Alberta, if all of the children you have are with your surviving spouse, then your entire estate goes to your surviving spouse. If one or more of you children are not a child of your spouse, then your spouse receives the greater of $150,000 (the preferential share) and ½ of the value of your estate and ½ of the remainder if divided equally amongst your children;
in British Columbia, your spouse is entitled to your household furnishings and a preferential share. If all of your children are also children of your spouse, then the preferential share to your spouse is $300,000.00. If one or more of you children are not children of your spouse, then the preferential share of your spouse is $150,000.00. If your estate is valued at less than the preferential share, then your entire estate goes to your spouse. If the value of your estate is greater than the preferential share, then the remaining ½ goes to your spouse and the other half is divided equally amongst your children.
In many provinces and territories, estate and succession laws include common-law partners in the definition of "spouse" allowing a common-law partner to inherit as spouse's would (stipulated above). The waters get muddled here when you have a common law partner, because various provinces and territories have legal requirements that your common law partner must meet in order to be entitled to a portion of your estate under the definition of your spouse. In some of those jurisdictions, it is the requirement to cohabitate for 3 plus years, be in an exclusive and conjugal relationship, have the intention and actual functioning as a domestic and economic unit, etc. The difficulty here lies where you have both a legal spouse AND a common law partner. In many instances, blood relatives begin to step in and handle your estate to the exclusion of your common law partner if they disapprove or dislike your common law partner. Even separated spouses will swoop in to assert their relationship with the deceased was rekindled. Unlike a marriage certificate, which quickly proves to the bank, funeral directors and the like, that you are a deceased’s spouse, there is no paperwork (besides a co-habitation agreement drafted by a lawyer...which most people do not have) that proves the existence of a common-law partnership. Many times, the common law spouse is left out of funeral arrangements made by blood relatives or spouses who swoop in to inherit your estate. So if you have a common law partner, even a long term one, don’t assume they will be recognized as your partner (or spouse) when you die. It is therefore absolutely important to make a Will to ensure that your common law partner is included and provided for in the event of your death (if that is your intention).
If you die intestate and have neither a spouse nor a common law partner, but you have children, then your entire estate is divided equally amongst your children. This is typically the way most people want their estate to go, but for those who have children they are estranged from, or children with differing needs (ie. a child who is a multi-millionaire brain surgeon and a child on government assistance) this may not be desired as all children will receive equal amounts of your estate. Similarly, stepchildren are excluded from the definition of children in most jurisdictions in Canada and therefore have no inheritance rights. If you have a stepchild or stepchildren you wish to gift to, then be sure to make a Will.
As can be seen, there are a lot of factors at play to determine where your estate will go in the event of your death. And we haven't even touched on today's most common scenario concerning young adults: what happens to your property when you are neither married or in a common law partnership, nor have children. Join us for Part 4 for the conclusion of this blog series to find out.
© 2022 Make Your Own Wills