SPOUSAL RELATIONSHIPS AND ESTATE LITIGATION – PART II
If a Will is made, or if there is an intestacy, a husband or wife receives the benefit provided under the deceased spouse’s Will or the intestacy provisions of the Successioin Law Reform Act, respectively, or is entitled to elect to instead receive his or her benefit under the Family Law Act.
Such election will be made if the husband or wife will receive a more favourable benefit by receiving one half of the difference between the net family properties of the deceased spouse and the survivor respectively.
Note that the right to elect is restricted to married spouses.
If an election under the Family Law Act will not benefit the surviving spouse, the option remains for the surviving spouse to claim against the estate under the provisions of Part V of the Succession Law Reform Act. The position asserted by the surviving spouse on such a claim is that the deceased spouse, by the provisions of his or her Will or on a distribution on an intestacy, did not satisfactorily provide for the needs of his or her spouse.
As noted above, an unmarried spouse as defined in Part V of the Succession Law Reform Act, may similarly asset a claim for support against the estate. A spouse is defined for the purposes of Part V of the Succession Law Reform Act to include persons who have “cohabited for a period of not less than three years or in a relationship of some permanence if they are the natural or adoptive parents of a child.”
It is a common characteristic of spousal relationships for the two to jointly own property. The predominant characteristic of jointly held property is that each joint owner has a right to ownership on the death of the other joint holder, also known as a right of survivorship. This right is severable, with each joint owner having an entitlement to one-half of the property.
Have a great day, David.