How Much Does a Surviving Spouse Get Without a Will in Nova Scotia

When your spouse dies without a will, you may worry that you will have to share everything with the children. In Nova Scotia the answer depends on the size of the estate and how many children there are.

This article walks through the rules in the Intestate Succession Act in plain language. Estates vary, so treat this as a general guide and have a lawyer confirm how it applies to your situation.

This article covers the law of Nova Scotia.

The basic rule under the Act

Under s. 4 of the Intestate Succession Act, if the net estate does not exceed $50,000 and there is a surviving spouse (and issue), the estate goes to the spouse. Issue means descendants, such as children.

If the estate is larger, the spouse takes $50,000 as a charge on the estate with interest from the date of death, plus one-half of the residue if there is one child, or one-third if there is more than one child. The children share the rest.

The residue is what remains after the $50,000 preferential share is set aside. The calculation is based on the net estate, so working out the net value is the first practical step.

How the split changes with the number of children

Children from other relationships raise questions that depend on the facts, such as who counts as a child or other descendant and how many shares result. A lawyer can confirm how your family's circumstances fit the Act.

The matrimonial home

Many couples own most of their wealth in the family home. Under s. 4(4), the surviving spouse may take the matrimonial home instead of the $50,000 if it is worth more, or as part of the $50,000 if it is worth less.

If the home was held as joint tenants, it passes by survivorship without a grant. In that case it generally does not form part of the estate that is divided under the Act, so the numbers above may look very different from your starting assumptions.

Other assets with a named beneficiary or a joint owner may also pass outside the estate. An asset holder such as a bank or insurer may ask for probate to prove authority, and this request is usually made only for sole-name assets.

Other rights, other limits, and a child under 19

The Act is not the only source of rights. A survivor's application to divide matrimonial assets must be made within six months after probate or administration is granted, though the court may extend where the survivor did not know of the grant or lacked adequate opportunity. That right is in addition to rights on intestacy or under the will.

A person stops being a minor at nineteen. The Public Trustee is by law the guardian of the estate of every child unless a court appoints someone else, and it holds a child's inheritance until the child turns 19. There are exceptions: the will or trust document may set an older age, and the Public Trustee may withhold funds at 19 only if there are signs the child may lack the mental capacity to manage their finances.

Reform of this Act may be under discussion, but the rules described here are those currently set out in the Act.

What to do next

• Confirm whether you were married or registered as domestic partners, since unmarried common-law partners have no rights under the Act.
• List assets and note which are in the deceased's sole name, jointly held, or have a named beneficiary.
• Gather a recent value for the home and any mortgage.
• List all children, including children from other relationships, with their ages.
• Ask a lawyer about applying for a grant, since land in the deceased's name generally needs one.

A grant is generally required to sell or transfer land in the deceased's name, and the form for a grant of administration is Form 9 (or 9A). Some assets with a named beneficiary or joint owner may not need probate unless the asset holder asks for it. On an intestacy, the Public Trustee ranks third in priority to administer, after the spouse or resident children and residents who are heirs. A lawyer can explain who has priority and what the steps look like.

Frequently asked questions