Does a Separated Spouse Inherit If There Is No Will in Manitoba?

Many couples live apart for years without ever finishing a divorce or dividing their property. If one of them dies without a will, the family often asks the same question: does the person they were separated from still inherit?

In Manitoba the answer depends on how the separation is described in the law, and on whether anything was started or settled before the death. This article explains the rules, what happens to the estate if the survivor is excluded, and what that person can still do.

This article covers the law of Manitoba.

The starting point: a surviving spouse usually inherits

When someone dies without a will, The Intestate Succession Act decides who inherits. If there is a surviving spouse or common-law partner and no children or other descendants, that person takes the entire estate. The survivor also takes everything if all of the deceased's descendants are also descendants of the survivor.

If some of the deceased's children are not also the survivor's children, the survivor takes the greater of $50,000 or one-half of the estate, plus one-half of any remainder, and the rest goes to the children. Manitoba's government describes this as at least 75% to the survivor and at most 25% to the children. A common-law partner has the same share as a spouse.

That is the rule for a couple who were still together. The separation rules below can change it.

When a separated spouse is treated as having died first

Being separated is not enough by itself. A surviving spouse is treated as having died before the deceased only if the spouses were living separate and apart at the time of death and one of two things happened: a divorce application or a Family Property Act accounting or equalization application was made during the separation, or they divided their property to finalize the breakdown.

Common-law partners have their own tests. A common-law partner includes someone who registered the relationship under The Vital Statistics Act, or who lived with the deceased in a conjugal relationship for at least three years (or at least one year if they are together the parents of a child). That partner is treated as having died first in any of these situations:

• The registered relationship was dissolved by registration before the death.
• For an unregistered relationship, three years had passed since they began living separate and apart.
• An accounting or equalization application was made.
• They divided their property.

Whether these tests are met often turns on dates and paperwork. If the facts are unclear, a lawyer can review them.

Several partners and the 15-day survival rule

If the deceased had a spouse and one or more common-law partners, the most recent relationship takes priority for intestate purposes. That does not stop the other partners from applying under the Family Property Act.

Separately, anyone who does not survive the deceased by 15 days, excluding the day of death of each, is treated as having died first. The exception is where that rule would send the estate to the Crown.

Who inherits if the survivor is excluded

If the separated spouse or partner is treated as having died first, the estate is dealt with as though there were no spouse. It goes first to the deceased's children, and then to more remote descendants, divided under the Act's share rules.

If there are no descendants, the estate goes to the parents in equal shares, or to the surviving parent. If there is no parent either, it passes to the parents' descendants, such as siblings and nieces and nephews through a deceased sibling, and then to grandparents and their descendants, and great-grandparents. Only if no successor exists under the Act does the estate go to the Crown.

What an excluded survivor can still do

Losing the intestate share does not always end the survivor's rights. A survivor excluded because of separation may still apply for an accounting and equalization of assets under the Family Property Act, if property matters were not already settled. The survivor may also have rights under The Homesteads Act. These Family Property Act rights apply to married spouses and equally to common-law partners. They take priority over rights under The Intestate Succession Act, and they are in addition to Homesteads Act rights.

Several points matter in practice:

• Only the survivor may make the application on a death. The deceased's personal representative may not.
• The time limit is six months from the grant of probate or letters of administration.
• The court may extend that period for undistributed estate property in limited cases, such as the survivor not learning of the death in time, the required notice not being served, circumstances beyond the survivor's control, or new assets being found after the period ends.
• Part IV does not apply if the spouses divided their assets before death under a spousal or common-law agreement, or under the Act. An earlier agreement does not bar these rights unless the survivor specifically waived or released them.

What the administrator must do, and what to do next

The personal representative must serve the survivor with a prescribed notice within one month after the grant. The representative must not distribute the estate until the survivor consents in writing, the time to apply has passed without an application, or an application has been decided. Distributing contrary to this makes the representative personally liable for the survivor's loss.

Practical steps depend on which side you are on:

• Gather the dates: when the couple separated, and when any divorce, equalization or property-division step was taken.
• Find any separation, spousal or common-law agreement, and check whether it mentions waiving rights.
• If you are the survivor, note the date of the grant and the six-month deadline right away.
• If you are the representative, do not distribute until the notice and waiting rules are met.
• Get legal advice early, since the answer turns on exact dates and documents.

Frequently asked questions