Does a Separated Spouse Inherit Without a Will in Manitoba?

When someone dies in Manitoba without a will, their spouse or common-law partner normally has first claim on the estate. But what if the two had separated and were living apart when the death happened? Many people assume the survivor still inherits. Sometimes they do not.

This article explains when a separated spouse or common-law partner is cut out of an intestate share, what the survivor can still claim, the deadlines that matter, and what happens when the deceased had more than one partner. Every situation is different, so a lawyer can confirm how this applies to yours.

This article covers the law of Manitoba.

The usual rule when there is no will

Under The Intestate Succession Act, a surviving spouse or common-law partner takes the entire estate if there are no children or other descendants. 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, 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 descendants. A common-law partner has the same share as a spouse.

Those rules assume the survivor still counts as a spouse or partner under the Act. Section 3 is where separation changes that.

When a separated married spouse loses the share

Under section 3(1), a surviving spouse is treated as having died before the deceased in two situations. Both require that the spouses were living separate and apart at the time of death.

• A divorce application, or a Family Property Act accounting or equalization application, was made during the separation.
• Or the spouses had divided their property to finalize the breakdown of the relationship.

If neither applies, the spouse is not removed by section 3 just because they lived apart. Whether a particular separation fits is a factual question worth checking with a lawyer.

When a separated common-law partner loses the share

First, remember who counts. A common-law partner is 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.

Under section 3(2), a surviving common-law partner is treated as having died first in any of these cases:

What an excluded survivor can still do

Losing the intestate share does not always end the survivor's financial 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. They may also have rights under The Homesteads Act.

Part IV of that Act applies to married spouses and equally to common-law partners. A separated spouse's Family Property Act rights take priority over rights under The Intestate Succession Act, and they are in addition to Homesteads Act rights.

Part IV does not apply if the spouses already divided their assets before death under a spousal agreement, a common-law relationship agreement, or the Act. An earlier agreement does not bar Part IV rights unless the survivor specifically waived or released them.

• Only the survivor can apply. The deceased's personal representative cannot make the application.
• If a party dies in the middle of an application, the survivor or the personal representative may continue it.
• The value is generally set at the date of death if the spouses were cohabiting then, otherwise the date of last cohabitation.
• Funeral and testamentary expenses are excluded from the calculation.

Deadlines and the personal representative's duties

The survivor has six months from the grant of probate or letters of administration to apply. The court may extend the period for undistributed estate property in limited cases: the survivor did not learn of the death in time, the required notice was not served, circumstances beyond the survivor's control occurred, or new assets turned up after the period ended.

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 passes without an application, or an application is decided. Distributing contrary to this makes the representative personally liable for the survivor's loss.

If an equalization payment is ordered, it is a debt of the deceased, paid after other liabilities and ahead of will gifts. Unless a will says otherwise, it comes from the other beneficiaries' interests in proportion to value. The payment is also reduced by any share the survivor takes under The Intestate Succession Act.

More than one partner, and what to do next

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.

• Write down the dates of separation, any court applications, and any agreements dividing property.
• Find out whether a grant of probate or letters of administration has been issued, and when.
• Note the six-month deadline from the grant and act early.
• Keep any notice you receive from the personal representative.
• Ask a lawyer about Homesteads Act rights and whether an earlier agreement affects your claim.

Frequently asked questions