Spousal Intestacy

If a husband and wife are married with two kids and the husband who is the only one on title only passes away, what happens, if there is no Will?,


This is a very difficult situation. There should have been a Will to protect everyone.

Assuming the husband passed away and the only two children involved are the two children he shares with his wife, then the wife inherits the first $350,000. Any amount over that is split one third to the wife and one third to each of the two children. The difficulty here is the likelihood that the children are minors. If that is the case then the Office of the Public Trustee and Guardian will protect their interests.

We also have a problem since the house doesn’t necessarily pass over to the spouse with a tax free rollover. That’s a potential issue. We also have a problem if there is a mortgage on title. The surviving wife will have to qualify for that independently going forward.

There is an opportunity possibly for a better deal for the wife by suing the estate (effectively for a divorce) to split up the assets. That’s available under the provisions of the Succession Law Reform Act, but the limitation is short. It’s only 6 months.

There is a simple solution. Avoid all these problems: Get a Will.

Brian Madigan LL.B., Broker


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