The law is constantly evolving and being refined. Most recently, a provision was added to Part II of the Succession Law Reform Act (the “SLRA”), which deals with how an estate is to be distributed when there is no will. In particular, on January 1, 2022, section 43.1 was amended to add that there is no application of the intestacy rules to separated spouses, and what it means to be a “separated” spouse.
Ordinarily, where a person dies intestate in respect of property and is survived by a spouse and no issue, the spouse is entitled to the property absolutely. Where a person dies intestate in respect of property and leaves a spouse and one child, the spouse is entitled to one-half of the residue of the property after payment of the spouse’s preferential share ($350,000.00 as of spring 2021). If there is more than one child, the spouse would similarly receive his/her preferential share and the balance of the estate is then divided between the spouse and children of the deceased.
Section 43.1 clarifies what it means to be “separated” for the purposes of these intestacy rules. Section 43.1(2) states that a spouse is considered to be separated from the deceased person at the time of the person’s death if, (a) before the person’s death: (i) they lived separate and apart as a result of the breakdown of their marriage for a period of three years, if the period immediately preceded the death; (ii) they entered into an agreement that is a valid separation agreement under Part IV of the Family Law Act; (iii) a court made an order with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage; or (iv) a family arbitration award was made under the Arbitration Act, 1991 with respect to their rights and obligations in the settlement of their affairs arising from the breakdown of their marriage; and (b) at the time of the person’s death, they were living separate and apart as a result of the breakdown of their marriage.
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.
It is important for litigants to pay attention to these types of nuances in considering bringing or responding to litigation.