Can a Surviving Spouse Elect Against the Will in Manitoba?

Opening a will and finding that your share is smaller than you expected is painful. In Manitoba, a surviving spouse is not necessarily stuck with what the will says.

This article explains the choice the law preserves, how an equalization claim differs from a will gift, what it means for other beneficiaries, and the timing you need to watch. It is general information, not advice on your case.

This article covers the law of Manitoba.

The choice the law preserves

Section 43 of The Family Property Act preserves a survivor's right to take under the will and not under the Act. In practice, you may choose either the will gift or the equalization claim.

The claim is open to married spouses and equally to common-law partners. Whether the equalization route suits your situation depends on the facts, so it is worth confirming with a lawyer.

Comparing the two routes

The equalization payment is also reduced by any share you take under The Intestate Succession Act. Your own assets, such as survivorship property passing to you, insurance on the deceased's life and registered plans payable to you, are exempt from the accounting.

Effect on the other beneficiaries

If you claim equalization, the payment is a debt of the deceased. It is paid after other liabilities and ranks ahead of gifts under the will.

Unless the will says otherwise, the payment comes out of the interests of the beneficiaries other than you, in proportion to the value of those interests. That is why other beneficiaries often care a great deal about whether you choose the will or the claim.

When the accounting is done, the value is generally set at the date of death if you were living together then, and otherwise at the date you last lived together. Funeral and testamentary expenses are excluded from the calculation. Certain things are counted as the deceased's assets to the extent no adequate consideration was received:

• Gifts made in contemplation of death
• Jointly held property with survivorship rights passing to others
• Registered plans payable to others
• Insurance or other payments made because of the death

Deadlines and protections

Your time limit for the application is six months from the grant of probate or letters of administration. The court may extend that period for undistributed estate property if you did not learn of the death in time, the required notice was not served on you, circumstances beyond your control occurred, or new assets are found after the period ends.

The personal representative must serve you with a prescribed notice within one month after the grant. The representative must not distribute the estate until you consent in writing, the time to apply has passed without an application, or an application has been decided. Distributing contrary to this makes the representative personally liable for your loss.

Only the survivor may apply, and the personal representative may not make the application for you. If a party dies partway through an application, the survivor or the personal representative may continue it.

Situations that change the picture

The choice is not the same for every survivor. These situations can change what is available to you:

• Earlier agreements: Part IV does not apply if the spouses divided their assets before death under a spousal agreement, a common-law relationship agreement, or the Act. An earlier agreement does not bar Part IV rights unless you specifically waived or released them.
• Separation: a separated spouse's Family Property Act rights take priority over rights under The Intestate Succession Act, and are in addition to rights under The Homesteads Act.
• Several partners: if the deceased had a spouse and one or more common-law partners, the most recent relationship takes priority for intestate purposes, but other partners may still apply under the Family Property Act.
• Divorce or the end of a common-law relationship: gifts to the former partner are generally revoked and the will is read as if that person died first, unless the will shows a contrary intention.

How these points apply depends on your facts, so it is worth confirming with a lawyer.

What to do next

• Get a copy of the will and find out whether probate or letters of administration have been granted, and when.
• Write down the date of the grant, because your six-month period runs from it.
• Keep any notice the personal representative sends you, and note the date you received it.
• Gather records of your own assets and any agreements you and the deceased signed.
• Do not sign a written consent to distribution until you understand what it gives up.
• Speak with a lawyer before the deadline gets close, so you can compare the will gift with an equalization claim.

Frequently asked questions