Does a Separated or Divorced Spouse Inherit From You in Nova Scotia?

When a marriage has ended, or is ending, it is natural to ask whether your former partner still has a claim on what you leave behind. Families face the same question after a death, when a spouse who was separated or divorced turns up in the paperwork.

The answer depends on three things: whether there is a will, whether the couple was legally married or registered as domestic partners, and what other claims the law allows a spouse to make. This article walks through each, and points out where you will need a lawyer to confirm the details.

This article covers the law of Nova Scotia.

Separation and divorce are not the same thing

Separating means living apart. Divorce is a court order ending the marriage. The two can lead to different results in an estate, and many people treat them as the same.

If there is a will, the main question is whether a divorce changes a gift to a former spouse, or the appointment of that person as executor. That depends on the statute that applies and on how the will is worded. It is worth confirming with a lawyer before you assume the gift is gone or still stands. Until it is confirmed, the executor should not distribute to or exclude a former spouse.

When there is no will: intestacy

If someone dies without a will, the Intestate Succession Act decides who inherits. Where the net estate does not exceed $50,000 and there is a surviving spouse (and issue), it goes to the spouse. Otherwise 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, and the children share the rest.

The surviving spouse may also 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.

These rights belong to a surviving spouse. Unmarried common-law partners have no intestacy rights under the Act. Only married spouses and registered domestic partners count. Whether a spouse who is separated but still legally married counts on these facts is something a lawyer can confirm.

Other claims a spouse may still make

Even if a will leaves a spouse little or nothing, the estate may face other claims. Under the Matrimonial Property Act, a survivor's application to divide matrimonial assets must be made within six months after probate or administration is granted. The right is in addition to rights on intestacy or under the will.

The court may extend that time where the survivor did not know of the grant or lacked adequate opportunity. A late application reaches only undistributed assets.

The Testators' Family Maintenance Act has its own time limit. An application cannot be brought after six months from the grant of probate (or administration with will annexed), subject to an extension, and a judge may suspend administration. Whether a separated or former spouse can use that Act is a legal question to confirm.

If a former spouse is named as executor

A will may still name someone you are no longer with. Whether that appointment survives a divorce is part of the same question the will's wording and the statute answer, so confirm it before anyone acts.

• The named person can renounce the office by completing Form 12 or another method satisfactory to the registrar, and the regulations set no deadline for renouncing.
• An executor who has already acted in the estate may be treated differently, so confirm with the registrar before taking any step.
• Someone who wants to force a named executor to accept or refuse the office may apply to court by citation, but not until at least 20 days after the testator's death unless the court finds circumstances warrant earlier.

What to do next

• Find out whether there is a will, and locate the original.
• Confirm whether the couple was legally married, divorced, or registered as domestic partners, or whether they were unmarried common-law partners.
• Note the date a grant of probate or administration is issued, because the six-month time limits can run from it.
• Do not distribute the estate to or away from a former spouse until a lawyer has confirmed their entitlement.
• Ask a lawyer how a divorce or separation affects the will and any executor appointment in your situation.

Frequently asked questions