Who Inherits If Your Spouse Dies Before a Saskatchewan Divorce?

Being in the middle of a divorce is hard enough. If your spouse dies before it is final, you may wonder whether you are still a legal spouse, whether you inherit, and what happens to the property claim you started.

This article explains the Saskatchewan rules that apply to the timing of a divorce and to wills, and where the answer turns on details that a lawyer should check for your situation.

This article covers the law of Saskatchewan.

When does a divorce actually end the marriage?

Starting a divorce, or even separating, does not end a marriage. In Saskatchewan the Divorce Act says a divorce takes effect on the 31st day after the day the judgment granting it is rendered.

A court can order an earlier effective date in special circumstances, but only if the spouses agree not to appeal. The only ground for divorce is breakdown of the marriage, which is often shown by living separate and apart for at least one year.

For the one-year route, the spouses must have been living apart when the proceeding began, and the full year must be complete when the divorce is determined, not when the papers are filed. The exception is adultery or cruelty by the other spouse, which allows a divorce without waiting for the one-year separation, although you cannot rely on your own adultery or cruelty. So a person can be well into a divorce and still not yet divorced.

What happens to a will?

Under section 19 of the Wills Act, 1996, a divorce revokes a gift to the former spouse and the appointment of the former spouse as executor, unless the will says otherwise. That rule is tied to the divorce itself.

A will is also not changed by marriage or by two or more years in a spousal relationship. A will that expressly says otherwise keeps the gift or executor appointment despite divorce.

• If the will names you as a beneficiary or executor, read exactly what it says and when it was signed.
• If you were named in a will and a divorce had already taken effect, the revocation rule in the Act may apply unless the will says otherwise.

Intestacy, survivor benefits and a pending property claim

If there is no will, the rules on who inherits depend on the legislation that governs intestacy and on who survives. Whether a spouse who was separated but not yet divorced inherits is a question to confirm with a lawyer, along with any pension or other survivor benefit, since each plan or program has its own terms.

A property claim is a separate matter. Under The Family Property Act, family property is distributed equally between spouses unless the court finds an equal distribution would be unfair and inequitable. The family home has a stricter test for an unequal split. Under section 23 of The Family Property Act, certain property, such as property owned before the relationship, gifts from third parties and inheritances, is exempt from distribution, though the exemption does not cover the family home or household goods, and the court can override it where exempting the property would be unfair and inequitable.

How an unfinished claim is handled once one spouse has died, and any time limits for continuing it, depend on the facts and the current Act. Do not assume your claim is lost or that it carries on automatically. Ask a lawyer promptly.

If you were not married

The Family Property Act treats an unmarried person who is cohabiting or has cohabited with another as spouses continuously for not less than two years as a spouse. For unmarried partners, property acquired more than 24 months after cohabitation ended is also exempt.

For wills, unmarried spouses lose gifts and executor appointments in the same way after they have ceased cohabiting in a spousal relationship for at least 24 months, unless the will says otherwise.

What to do next

• Find the date of any divorce judgment and whether the 31st day after it had passed.
• Locate the will, any updates to it, and any separation agreement. Agreements about property or support are not collusion and may matter.
• Gather court papers from the divorce and any property claim, including what stage each had reached.
• List pensions, insurance and registered plans, and contact each administrator to ask about beneficiary rules.
• Speak with a Saskatchewan lawyer soon about the estate and the claim, since deadlines may apply.

Frequently asked questions