- The intestacy rules in the Devolution of Estates Act name the spouse, children and their issue, parents, siblings, nephews and nieces, and next of kin.
- A stepchild is not named in those provisions, so in general a stepchild has no intestate share.
- A stepchild who was a dependant under the Family Law Act may be able to apply for support, within four months of the death.
Blended families often assume that a stepchild who was raised as one of the family will inherit if there is no will. The law in New Brunswick is narrower than many people expect.
This article explains who inherits on an intestacy, where a stepchild fits, and what options may still exist.
This article covers the law of New Brunswick.
Who inherits when there is no will
Intestacy is governed by the Devolution of Estates Act. If there is a spouse but no issue, the whole estate goes to the surviving spouse. With no spouse or issue, the estate goes to the father and mother equally, then to brothers and sisters, nephews and nieces, then next of kin of equal degree.
| Family | Who takes |
|---|---|
| Spouse, no issue | Whole estate to the spouse |
| Spouse and one child | Spouse takes the marital property interest plus one-half of the residue |
| Spouse and two or more children | Spouse takes the marital property interest plus one-third of the residue, balance to the issue |
| No spouse, no issue | Parents, then siblings, nephews and nieces, then next of kin |
Where stepchildren fit
The list of relatives who take on an intestacy does not include stepchildren. 'Child' means offspring of the first generation and excludes grandchildren, though grandchildren take as issue per stirpes. A stepchild is not the deceased's own offspring, so a stepchild does not take as a child.
This can feel harsh where a stepparent raised the child. Still, a stepchild's share, if any, would have to come from somewhere other than the intestacy rules.
Compared with biological and adopted children
A biological child takes under the rules above. Children born after death but begotten before it also inherit. The half-blood inherit equally with the whole blood. An advancement made to a child is counted against that child's share.
How adopted children are treated is a question to confirm with a lawyer for your facts.
Unmarried partners are also affected. The intestacy provisions refer only to widow and widower, so an unmarried partner has no intestate share and the estate goes to the listed relatives.
Options a stepchild may still have
Under the Provision for Dependants Act, a dependant includes the spouse or child of the deceased and any other person who was a dependant of the deceased under the Family Law Act. A judge of the Court of King's Bench may order maintenance and support out of the estate where the dependant's resources are insufficient. Whether a particular stepchild qualifies depends on the facts.
No application may be made later than four months after the death, although a judge may allow a later application for any part of the estate still undistributed if just. The judge may refuse an order if the applicant's character or conduct disentitles them.
What to do next
- Note the date of death, since the four-month limit runs from death.
- Gather proof of the relationship and of any financial support you received.
- Find out who is applying to administer the estate.
- Speak to a lawyer promptly about a dependant's claim.
- Ask the lawyer whether other relatives, or adoption, change the picture.
Frequently asked questions
Do stepchildren inherit if there is no will?
In general, no. The intestacy provisions name the spouse, issue, parents, siblings, nephews and nieces and next of kin, and not stepchildren.
Can a stepchild claim support from the estate?
Possibly. A dependant under the Family Law Act can apply under the Provision for Dependants Act if their resources are insufficient. Whether you qualify is fact-specific.
How long do I have to apply?
An application must be made no later than four months after the death, unless a judge allows a later one for the undistributed part of the estate.
Does the surviving spouse get everything?
Only if there is no issue. With children, the spouse's share is limited and the balance goes to the issue.
Sources
- Provision for Dependants Act, SNB 2012, c 111 — laws.gnb.ca
- Provision for Dependants Act, SNB 2012, c 111 — laws.gnb.ca
- Devolution of Estates Act, RSNB 1973, c D-9 — laws.gnb.ca
- Marital Property Act, SNB 2012, c 107 — laws.gnb.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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