SPOUSAL RELATIONSHIPS AND ESTATE LITIGATION – PART I
Spousal relationships (and their breakdown) and their interaction with estate litigation are the focus of this week’s blogs. In the practice of estate litigation, there is an immense body of applicable case law and statutory authority.
For the purpose of these blogs, the term “married spouse” is used to consider those entitlements which are only granted to those spouses who fall within the definition of marriage in Ontario. The term “unmarried spouse” is used to consider the entitlements of spouses who are not married but who are conferred benefits under the provisions of certain statutes.
(i) Rights of a married spouse on an intestacy
The entitlement of a married spouse on an intestacy is statutory: Succession Law Reform Act, Part II. A surviving husband or wife, on an intestacy, receives the entire estate of his spouse if there are no children. If there are children, the surviving husband or wife still receives the first $200,000.00 of the estate and either 1/2 of the remainder if there is one child or 1/3 of the remainder if there are two of more children of the marriage.
(ii) Rights of an unmarried spouse on an intestacy
A surviving unmarried spouse, on an intestacy, receives no entitlement. A spouse is defined for the purposes of Part II of the Succession Law Reform Act as either a man or a woman who is married.
Although there are some cases in other provinces which suggest that this statutory provision offends the equality provisions of the Charter, the only available statutory remedy for an unmarried spouse on an intestacy in Ontario is to bring an application for support under the provisions of Part V of the Succession Law Reform Act.
Tomorrow, we will consider the entitlements of married and unmarried spouses under a Will and their entitlements when the benefit under the Will is less than adequate.
Have a great day, David.