CANADA Law and Practice Contributed by: Ian M Hull, Suzana Popovic-Montag and Nick Esterbauer, Hull & Hull LLP
and the children share the remaining two-thirds. If the deceased left no children, the surviving spouse inher- its the entire estate to the exclusion of the deceased’s next of kin. Only where the deceased dies without a surviving spouse or children will the estate pass to the deceased’s next of kin. Comparable rules apply elsewhere in Canada. In Manitoba and British Columbia, however, the surviv- ing spouse’s entitlement varies depending on whether the deceased left children, and if so, whether those children were also children of the surviving spouse. Several jurisdictions limit a separated spouse’s entitle- ment on intestacy. In Ontario, Alberta, Manitoba, and the Northwest Territories, a surviving spouse may be excluded from sharing in the estate if the spouses had separated prior to the deceased’s death and any statutory requirements are met. These requirements may include living separate and apart for a requisite amount of time, or entering into a separation agree- ment or obtaining a court order. If a person dies intestate without surviving relatives, the estate will escheat to the Crown. Personals prop- erty escheats to the Crown in the jurisdiction where the person was domiciled at death, regardless of where the personal property is located. Immovables escheat to the Crown in the jurisdiction where the property is situated, regardless of the deceased’s domicile. 3.2 Forced Heirship Canada has no forced heirship regime. In many provinces, however, a surviving spouse may elect to receive an equalisation of family property rather than inherit under the deceased spouse’s will. In Ontario, Section 5 (2) of the Family Law Act, RSO 1990, c F.3 allows a married spouse to elect an equali- sation payment within six months of death. Unless the will provides otherwise, this election revokes any testamentary gifts to the surviving spouse. The right to elect equalisation may be waived by failing to file an election within the prescribed period, resulting in a deemed election to take under the will or on intestacy, although the court may extend the deadline. Similar legislative provisions exist in the Northwest Territories and Nunavut.
Comparable relief is available in Manitoba, Saskatche- wan, Alberta, Nova Scotia, New Brunswick, and New- foundland and Labrador. Manitoba and Saskatchewan allow both married and common-law spouses to apply for equalisation. Alberta extends the right to married spouses and adult interdependent partners, pro- vided the claim could have been brought before the deceased spouse passed. Nova Scotia allows claims by married spouses and those in registered domestic partnerships to apply for equalisation. In New Brun- swick and Newfoundland and Labrador, only married spouses may seek equalisation. British Columbia does not provide for equalisation payments. Instead, spouses may apply to vary a will under the Wills, Estates and Succession Act, SBC 2009, c 13. This is generally viewed as a limitation on testamentary freedom, rather than forced heirship, as eligibility to apply does not guarantee entitlement. In Prince Edward Island, a married spouse may con- tinue an equalisation claim only if it was commenced before death. A spouse may also waive the right to an equalisation payment by entering a domestic contract or spousal agreement before the death of either spouse. To be effective, the agreement must clearly address the distribution of property on separation or death, or expressly waive the right to elect equalisation upon death. A clause stating only that each spouse retains ownership of their property is insufficient. The agree- ment must also be in writing, signed by both parties, and witnessed. In Quebec, a surviving spouse may also renounce the right to partition the family patrimony following the death of their spouse through a formal notarial act. The entitlement to receive equalisation is personal to the surviving spouse; the estate of the deceased spouse cannot initiate the claim: see Rondberg Estate v Rondberg Estate , 1989 CanLII 4153 (ON CA). In some provinces, including Ontario, property that passes outside the estate may also be included in the equalisation calculation.
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