What Happens if your Spouse Passes Away, Without a Will?

What Happens if Your Spouse Passes Away, Without a Will?

When an individual passes away without a Last Will and Testament (“Last Will”), it means they died intestate. When your partner dies intestate, the surviving spouse has two options. The surviving spouse may elect to take their entitlement under Part II of the Succession Law Reform Act (“SLRA”), or they can forfeit their entitlement and elect under the Family Law Act (“FLA”).

Succession Law Reform Act Election:

Part II of the SLRA grants a surviving spouse a
preferential share of a deceased spouse’s estate when they die intestate. The
preferential share is set out under Regulation 54/95 of the SLRA and states:

(a)  $200,000, for the estates of persons who die before March 1, 2021; and

(b)  $350,000 for the estates of persons who die on or after March 1, 2021.

The preferential share is taken from the net value of the deceased estate. The value of the deceased estate does not include jointly owned assets that pass by way of contract or designation to a beneficiary (e.g., life insurance, RRSPs, RRIFs, and/or TFSAs). The preferential share itself is

calculated after all debts and liabilities if the estate has been deducted (SLRA, s. 45(4)).

The surviving spouse is entitled to the preferential share in
accordance with the following rules set out under the SLRA:

(a)  If the estate’s net value is less than
the preferential share, the entire estate passes to the spouse (SLRA, s.

(b)  If the estate’s net value is greater
than the preferential share, the preferential share passes to the spouse (SLRA,
s. 45(2)); and

(c)  Where there is a partial intestacy
(i.e., when the will does not dispose of all of the deceased property) – the bequests
received by the surviving spouse under the Last Will are accounted for when calculating
the preferential share (SLRA, s. 45(3)(a))


Family Law Act Election:

The election process under the FLA means the surviving
spouse may choose an equalization of their Net Family Property (“NFP”)
instead of their preferential share. The formula used to determine a spouse’s NFP
is the surviving spouse’s net worth from the date of marriage to the date of
the spouse’s separation or, in this case, the day before the Deceased death (referred
to as the valuation day or V-day). The difference is then calculated between the
surviving spouses’ NFP and the deceased NFP. This is referred to as the
equalization payment.

How to Elect:

The surviving spouse has six months from the date of death
to file the election (FLA s. 6(10)). If the surviving spouse fails to make an
election, it is deemed they elected under the intestacy (preferential share).

If you are unsure how to elect, the best practice is to
calculate your NFP and/or equalization payment to determine if it would be more
beneficial to elect under FLA or receive your preferential share under the

Different considerations and rules are considered in cases where a deceased spouse dies with a Last Will. My
next post will discuss the surviving spouse’s rights when their spouse with a Last