Does a Separated Spouse Inherit If There's No Will in Saskatchewan?

When someone dies without a will and was separated from their spouse but never divorced, families often disagree about who inherits. The answer turns on how long the couple had been living apart, and on which version of the law applies.

This article explains the general rules in Saskatchewan, what a spouse would usually receive if they were not separated, and what other claims or timing issues can affect the person managing the estate.

This article covers the law of Saskatchewan.

Which law applies depends on the date of death

When there is no will, the estate is divided under intestacy legislation. Saskatchewan uses The Intestate Succession Act, 1996 for deaths before October 1, 2019, and The Intestate Succession Act, 2019 for deaths on or after October 1, 2019.

This matters because some figures differ between the two periods, as shown below. Confirm the date of death first, since it decides which rules you read.

The two-year separation rule

Under the intestacy rules, a spouse who had lived separate and apart from the person who died for two years takes no share of the estate.

Whether a couple had actually lived separate and apart for that long can be a point of dispute. Evidence such as separate residences, dates of moving out and how the couple lived can matter, and a lawyer can help you assess how the rule applies to your facts.

What a spouse who was not separated would get

For comparison, here is what a spouse who was not separated would normally receive. If all of the person's children are also children of the spouse, the spouse inherits the entire estate.

If there are children from another relationship, the spouse first takes a preferential share of $200,000, which was raised from $100,000 and is set in The Intestate Succession Regulations. The rest is then divided as follows. The $200,000 figure applies to deaths on or after October 1, 2019, and earlier deaths use the 1996 Act with the $100,000 figure.

Routes a surviving spouse may still have

Losing a share on intestacy does not necessarily end every claim. Some assets never become part of the estate: land held in joint tenancy with survivorship, bank accounts with survivorship, life insurance with a named beneficiary, and RRSPs or RRIFs with a named beneficiary pass outside probate. If a separated spouse is the joint owner or named beneficiary, those assets can still go to them.

A spouse may also apply for a family property order under The Family Property Act. No such application may be started more than six months after the grant of probate or administration, and spouses who signed a valid waiver cannot apply. The exact wording of that deadline is worth confirming against the Act with a lawyer.

Effect on the administrator, and what to do next

Where no will exists, you apply for Letters of Administration. The order of priority to apply is the spouse, then children, grandchildren and other issue, parents, siblings, nephews and nieces, next of kin of equal degree, creditors, and finally the official administrator.

Distribution may be delayed six months after Letters are obtained where a spouse may apply for division of family property or a dependant may claim under The Dependants' Relief Act, 1996. Final distribution also cannot occur until the CRA clearance certificate is received.

• Confirm the date of death and which Intestate Succession Act applies.
• Gather evidence of when and how the couple separated.
• List assets held jointly or with a named beneficiary, since these may pass outside the estate.
• Note the date any grant is issued so the six-month periods can be tracked.
• Speak with a lawyer before distributing anything, especially if the separation is disputed.

Frequently asked questions