My Spouse Died Without a Will While We Were Separated – Now What Do I Do?

Paul Fleming
Posted March 3, 2022 Category: Individuals/Families, News & Updates

Once upon a time you got legally married, maybe had children, and hoped to live happily ever after.  But life threw you some challenges.  Difficulties with your spouse grew and one day, after years together, you and your spouse decided to separate. During your separation, your spouse died and, on top of everything else- it turns out he or she had no will.  You feel lost. 

Here is your game plan.

  1. Don’t panic!  You are not the first person to experience this situation and the laws of Ontario provide the answers.
  1. Understand the basics of dying without a will.  When your spouse dies without a will, you do not necessarily inherit all his or her estate. The amount you are entitled to, if any, depends on the value of your spouse’s estate, and whether your spouse had children.   It also depends on whether you were legally “separated” from your spouse at the time of his or her death.

    If you are not separated at the time your spouse dies and you have no children, you are entitled to all your spouse’s property. If your spouse dies without a will and is survived by you and children (whether children of your marriage or not), then you are entitled to a “preferential” share of your spouse’s estate, in priority to the children.  The preferential share is currently $350,000 – if your spouse died after March 1, 2021.  So, if the value of your spouse’s estate is less than $350,000 then the children will not receive an inheritance and you will receive everything.

    But if your spouse’s estate is valued at more than $350,000 and your spouse is survived by you and one child, then you are entitled to one-half of the net property remaining after payment of the “preferential” share, and the child will receive the other half.  If there are two or more children, then you are entitled to one-third of the net property after payment of the “preferential” share, and the remaining two-thirds is divided evenly among the children.
  1. Determine if you were legally “separated” from your spouse at the time of death.  You are considered to have been “separated” from your spouse when he or she died if: (i) you had been living separate and apart from each other due to the breakdown of the marriage for the immediately preceding 3 years prior to the date of death; or (ii) you and your spouse had entered into a valid separation agreement; or (iii) the court had made an order settling the spouses’ affairs arising from the breakdown of the marriage; or (iv) a family arbitration award was made settling the affairs of you and your spouse arising from the breakdown of the marriage; AND at the time of your spouses’ death, you were living separate and apart from each other as a result of the breakdown of your marriage.

    If it turns out that you are in fact, “separated” then you will not be entitled to share in the proceeds of your spouse’s estate.  It should also be noted that common-law spouses are not treated the same as married spouses under the law and do not automatically have the same property rights.
  1. If it turns out that you were not legally “separated” when your spouse dies without a will then the laws of Ontario allow you to “elect” to receive your entitlement on the basis of number 2 above OR to receive your entitlement under the Family Law Act, which uses a different formula for determining your entitlements to your spouse’s property.

Determining what rights you may have after the death of a spouse, separated or not, is a complex area of estates and family law.  We are here to help you, please contact the Estate, Trust and Capacity group at Cunningham Swan.

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Paul Fleming
Posted March 3, 2022 Category: Individuals/Families, News & Updates

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