- A will can leave a spouse little or nothing, but a spouse or adult interdependent partner is a family member who may apply for maintenance and support from the estate.
- The application must be commenced within 6 months after the grant of probate or administration, with limited court discretion afterwards.
- A surviving spouse or partner who is not on title and ordinarily occupied the family home is entitled to possession for 90 days from the date of death, although the Court may terminate, shorten or extend that period.
Finding out that a spouse left you nothing, or very little, in their will is a shock. The natural question is whether the law lets someone leave a spouse out entirely.
In Alberta, a will can say what it says, but the Wills and Succession Act gives a surviving spouse or partner some protection. This article walks through the main ones and the deadlines that matter.
This article covers the law of Alberta.
The family maintenance and support claim
If a person dies with a will that does not adequately provide for the proper maintenance and support of a family member, the Court may, on application, order that any provision it considers adequate be made out of the estate. The claim comes from Part 5, Division 2 of the Wills and Succession Act.
A spouse and an adult interdependent partner are both listed as family members, so a partner has a claim in the same category as a spouse. The claim also applies where there is no will and the family member's share is inadequate.
It is a claim for maintenance and support, not a guarantee of a particular share. The Court decides what it considers adequate.
Who is an adult interdependent partner
Two people are adult interdependent partners if they have lived in a relationship of interdependence for a continuous period of not less than 3 years, or of some permanence if there is a child of the relationship by birth or adoption. They are also partners if they have entered into an adult interdependent partner agreement.
- People related by blood or adoption can become partners only through an adult interdependent partner agreement.
- A relationship of interdependence does not exist where one person provides domestic support and personal care for a fee or other consideration, or on behalf of another person or organization.
- A former adult interdependent partner is not a family member under the partner paragraph.
Whether a separated spouse is a family member for a maintenance claim depends on the facts and is worth confirming with a lawyer.
How the Court decides and what it can order
The Court considers a number of factors, including the family member's relationship with the deceased, age and health, capacity to contribute to their own support, and entitlement to support from another person. It also looks at the deceased's legal support obligations, the reasons for the gifts, and any agreement or waiver.
It considers the size and distribution of the estate, including property the deceased transferred or placed in trust during life, and property the family member received under the Family Property Act, the Dower Act or Division 1.
The Court can order periodic payments, a lump sum, or a transfer of specified property, and may impose conditions. An order takes effect as if made immediately on the death, and the will is treated as varied from that time. A waiver does not necessarily stop an order.
Deadlines and other protections
An application must be commenced within 6 months after the grant of probate or administration is issued, not after the death. The Court may allow a later application, but only for estate property not yet distributed. The personal representative generally may not distribute estate property during the 6 months after the grant without consent or a court order, although reasonable advances are permitted.
| Protection | What it provides |
|---|---|
| Family home possession | A spouse or partner not on title who ordinarily occupied the home is entitled to possession for 90 days from the date of death; the Court may terminate, shorten or extend this |
| Survivorship | Joint property passing by survivorship to a surviving co-owner generally falls outside the estate |
| Intestacy | With no will and no descendants, the entire intestate estate goes to the surviving spouse or partner, but if both a spouse and an adult interdependent partner survive, each takes half of the estate |
| Separated spouses on intestacy | A spouse separated for more than 2 years, or party to a declaration of irreconcilability, is deemed to have predeceased, unless there was a subsisting reconciliation |
If the home passed to the owner by right of survivorship, the possession period may not exceed 6 months. Other rights between spouses, such as those under matrimonial property law, may also matter. How they apply depends on your situation, so it is worth asking a lawyer about them promptly.
What to do next
- Find out whether probate or administration has been granted and write down the date of the grant.
- Ask for a copy of the will and a list of how the estate property is held, including joint property.
- Record whether you lived in the family home and how long.
- Gather your income, expenses, health and other financial records.
- Speak to a lawyer well before the 6-month date, including about any matrimonial property rights.
Frequently asked questions
Can my spouse leave me nothing in their will?
A will can do that, but a spouse or adult interdependent partner is a family member who may apply for maintenance and support if the will does not adequately provide for them. The Court then decides what provision, if any, it considers adequate.
Can I stay in the family home after my spouse dies?
A spouse or partner who is not on title and ordinarily occupied the home is entitled to possession for 90 days from the date of death. The Court may terminate, shorten or extend that period.
What if my spouse and I owned property jointly?
Joint property that passes by survivorship to a surviving co-owner generally falls outside the estate. How your property was held is worth confirming with a lawyer.
Is there a way to stop the estate being paid out while I make a claim?
The Court may protect or preserve estate assets or direct how the estate is administered, including suspending administration. Once notice of an application is served on the personal representative, the estate is subject to any order made.
Sources
- Wills and Succession Act, Part 5 (Alberta King's Printer) — kings-printer.alberta.ca
- Adult Interdependent Relationships Act, s. 3(1) — kings-printer.alberta.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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