Does a Spouse Get Everything Without a Will in Alberta?

When someone dies in Alberta without a valid will, many people assume the surviving spouse simply inherits everything. Sometimes that is exactly what happens. In other families, especially blended ones, the children also receive a share.

The answer depends mostly on one question: are all of the deceased's children also children of the surviving spouse? This article walks through the rules in plain words, shows a worked example, and explains what to do next.

This article covers the law of Alberta.

Which rules apply

Property that is not dealt with by a will is called an intestate estate, and it is distributed under Part 3 of the Wills and Succession Act. Part 3 applies to deaths on or after February 1, 2012, while earlier deaths are governed by the former Intestate Succession Act.

The shares are worked out on the net value of the estate, which is calculated after debts, charges, and funeral and administration expenses. Intestacy rules cover only property not disposed of by a will. Assets that pass by survivorship or to a named beneficiary generally sit outside the estate, so it is worth confirming with a lawyer what actually falls into it.

When the spouse takes everything

There are two common situations where the surviving spouse receives the whole estate.

• No children or other descendants: the whole intestate estate goes to the surviving spouse or adult interdependent partner.
• Children who are all also the spouse's children: the spouse or partner takes the entire intestate estate, and the children do not share in it.

A child who was in the womb when the person died and is later born alive is treated as a child of the deceased for these purposes. That can matter when you are deciding whether all the descendants are shared with the spouse.

When a child is from another relationship

If one or more of the deceased's descendants are not also descendants of the surviving spouse, the spouse no longer takes everything. The spouse takes the greater of the prescribed amount or 50% of the net value of the intestate estate, and the remainder goes to the descendants. The prescribed amount is $150 000, set by the Preferential Share (Intestate Estates) Regulation.

Here is how the numbers work in two examples where there is a spouse and one child from a prior relationship.

The $150 000 figure is set by a regulation that expires on December 31, 2031, so the amount may be reviewed or re-made by then. The Minister of Justice has the power to prescribe the amount.

Who counts as the spouse

The same entitlements apply to a surviving adult interdependent partner as to a surviving spouse. Some situations change who is treated as a spouse at all.

• Separation: a spouse is treated as having died before the deceased if the spouses lived separate and apart for more than two years, were parties to a declaration of irreconcilability, or had a property or family agreement meant to finalize their separation.
• Reconciliation: that separation rule does not apply if the spouses reconciled and the reconciliation was still continuing at the time of death.
• Spouse and partner both: if the deceased left both a spouse and an adult interdependent partner, the estate is divided between them, and the split depends on whether there are descendants.

A person who takes a share as an adult interdependent partner cannot also take a second share in another capacity.

What to do next

Even when the spouse is clearly entitled, someone still needs legal authority to deal with the estate. A grant is the Court's authority to administer an estate, and once it issues, only the personal representative named in it can act for the estate. Where there is no will, a surviving spouse or adult interdependent partner is first in line to apply.

• Gather the death certificate and a list of assets, debts and funeral costs.
• Note whether any children are from a different relationship, and their ages.
• Check whether you and the deceased were separated, and for how long.
• Find out which assets pass by survivorship or a named beneficiary.
• Speak with a lawyer before dividing anything, especially in a blended family.

Frequently asked questions