How an Intestate Estate Is Divided Under Alberta's WSA

When there is no will, Part 3 of Alberta's Wills and Succession Act decides who gets what. The shares depend on your family structure, and the $150 000 figure used in some cases is set by a regulation that may change.

This article explains each share and walks through worked examples so you can see how the numbers come out.

This article covers the law of Alberta.

What gets divided

Part 3 applies to deaths on or after February 1, 2012. An intestate estate is property not disposed of by a will, and it is distributed under Part 3. The net value is calculated after debts, charges, and funeral and administration expenses.

Assets that pass by survivorship or to a named beneficiary, such as RRSPs or life insurance, sit outside the estate and are not divided this way.

Shares by family situation

Adult interdependent partners receive the same entitlements as spouses.

Worked examples with a spouse and a child from another relationship

With a net estate of $400,000, a spouse, and one child from a prior relationship, the spouse takes the greater of $150,000 and $200,000 (50%), which is $200,000. The child takes $200,000.

With a net estate of $200,000 in the same family, the spouse takes $150,000 and the child takes $50,000.

The $150 000 amount is set by the Preferential Share (Intestate Estates) Regulation, Alta Reg 217/2011. The Minister of Justice may make regulations prescribing it. The regulation expires December 31, 2031, so the figure may be reviewed or re-made by then.

Children, parents, siblings and distant relatives

Where descendants take, the estate is split into one share for each surviving child and one for each deceased child who left descendants, and that deceased child's share is divided among their descendants the same way. A child in the womb at death who is later born alive counts as a child.

With no spouse, partner or descendants, the order is:

• Parents.
• Descendants of the parents, such as siblings, nieces and nephews.
• Grandparents and their descendants.
• Great-grandparents and their descendants, split between the two sides of the family.

Degrees of relationship are counted up from the deceased to the nearest common ancestor and then down to the individual. Descendants of a half-kinship inherit equally with those of the whole kinship in the same degree. Relatives of the 5th or greater degree are treated as having predeceased. Kin excludes relatives by marriage. If no one is entitled, the Unclaimed Personal Property and Vested Property Act applies, subject to s. 11 of the Public Trustee Act.

Situations that change the shares

• Separated spouses can be treated as having predeceased after more than two years living separate and apart, a declaration of irreconcilability, or an agreement meant to finalize separation. A reconciliation subsisting at death overrides this.
• If both a spouse and an adult interdependent partner survive, the estate is divided between them.
• A person taking as an adult interdependent partner cannot also take a second share in another capacity.
• An unmarried partner who is not an adult interdependent partner has no share.

The Wills and Succession Act uses the meaning of adult interdependent partner from the Adult Interdependent Relationships Act. A person generally qualifies by living with the other person in a relationship of interdependence for a continuous period of not less than 3 years. There are two exceptions: a relationship of some permanence qualifies without the 3 years if there is a child of the relationship by birth or adoption, and a person who entered into an adult interdependent partner agreement qualifies with no minimum period of living together.

A relationship of interdependence is one outside marriage in which two people share one another's lives, are emotionally committed, and function as an economic and domestic unit. Living together alone is not the test. No such relationship exists where one person provides the other domestic support and personal care for a fee or other consideration. A person cannot have more than one adult interdependent partner at a time, and a married person cannot become one while living with a spouse.

A partnership can also end. One example is living separate and apart for more than one year with the intent that the relationship not continue. A single return to living together of not more than 90 days, mainly to reconcile, does not interrupt a separation. In court, the person claiming to be a partner has the onus of proving the relationship.

What to do next

• Estimate the net estate after debts and expenses.
• Separate assets that pass outside the estate.
• List every surviving relative and any child from another relationship.
• Confirm the current prescribed amount before relying on $150 000.
• Ask a lawyer to confirm the split if a partner's status or separation is unclear.

Once a court grant issues, no one other than the personal representative it is issued to has authority to act for the estate. Where there is no will, the order of priority to apply starts with the surviving spouse or adult interdependent partner, then a child. An applicant files Form GA1 and any other forms the circumstances require. Which steps apply to you depends on your situation, so it is worth confirming with a lawyer.

Frequently asked questions