Special Provisions for a Spouse in The Estate

Dealing with the death of a loved one is a difficult and emotionally charged time. Occasionally the deceased spouse has failed to organize their affairs to ensure the surviving spouse has been left with an appropriate legacy. Occasionally the deceased spouse has purposely excluded the surviving spouse from their estate.

The result for the spouse left behind can be disastrous. They may be left with all of the joint debts but no access to life insurance proceeds or investments. They may find that a business, in which they worked side-by-side, has been transferred to someone else. The end result can seem horribly unfair and the surviving spouse may feel there is nothing that can be done.

Legislators contemplated the possibility of a surviving spouse being left with less than their share of the family assets and included special provisions in The Family Property Act, Part IV, to address this very problem. Under this section the date of death is treated like the date of separation and an accounting, the equal division of a family’s assets and debts, takes place much like in a divorce.

There are special provisions that differentiate an accounting on death from an accounting from the breakdown of a marriage. Assets that are considered property of the deceased spouse include property held jointly with someone else and any TFSA/RSP/RIF/Pension/Life Insurance payable to someone else. On the other hand assets that are not considered property of the surviving spouse include: property they held jointly with the deceased spouse and any TFSA/RSP/RIF/Pension/Life Insurance left to them by the deceased spouse.

Applications under Part IV of The Family Property Act are started by way of a Petition to the Court, they are complicated and emotionally taxing. If you would like to find out whether Part IV applies to your situation and how we can help please contact our office to book a consultation.