Can a Surviving Spouse Claim a Share of the Estate in Nova Scotia?

If your spouse died and the will left you little or nothing, you may wonder whether you can still claim a share. In Nova Scotia there are legal routes that exist alongside the will, and they come with short deadlines.

This article outlines the main ones. How much a court might award depends heavily on the facts, so treat this as a map of the process rather than a prediction.

This article covers the law of Nova Scotia.

Two main routes when the will leaves you little

A spouse in this position commonly looks at two statutes: the Matrimonial Property Act and the Testators' Family Maintenance Act. They are different claims with different tests, and they can be considered separately.

Dividing matrimonial assets

On a spouse's death, the survivor can apply to divide matrimonial assets. The application must be made within six months after probate or administration is granted.

The court may extend the time where the survivor did not know of the grant or lacked adequate opportunity. A late application reaches only undistributed assets. That is one reason acting early matters.

This right is in addition to the survivor's rights on intestacy or under the will. In other words, claiming under this Act does not by itself cancel what the will gives you. How assets are classified and divided depends on the facts.

Family maintenance claims

The Testators' Family Maintenance Act allows certain people to ask the court about provision from the estate. An application cannot be brought after six months from the grant of probate, or administration with will annexed, subject to an extension under subsection (2) of the section.

A judge may suspend administration of the estate while such a matter is dealt with. Who qualifies and what the court considers are fact-specific questions that a lawyer can explain.

If there is no will

Where there is no will, the Intestate Succession Act applies. If 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. The children share the rest.

The surviving spouse may 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.

Unmarried common-law partners have no intestacy rights under the Act. Only married spouses and registered domestic partners count. If that is your situation, get advice early, because other legal routes may or may not be open to you.

What to do next

The key is the date of the grant. The six-month clocks above run from it, so find out whether a grant has been issued. Estate records are kept at the Registrar's office in each district.

• Find out whether a grant has been issued and its date.
• Look for the notice of the grant; the personal representative must serve it on each person who is or may be entitled to share within 30 days after the grant.
• Write down the six-month dates and treat them as firm unless a lawyer tells you otherwise.
• Gather the will, marriage or partnership records, and a list of assets and debts.
• Ask the personal representative not to distribute assets until your position is clear.
• Speak to a lawyer promptly about which claims fit your situation.

If a contested matter goes ahead, it is heard by a judge. Exactly how a claim under the Matrimonial Property Act or the Testators' Family Maintenance Act is started depends on your situation, so it is worth confirming with a lawyer.

If you disagree with a registrar's decision under section 93 of the Probate Act, an appeal must be started not later than 30 days after the registrar's decision or order.

Frequently asked questions