What a Surviving Spouse Gets From an Estate in Newfoundland and Labrador

After losing a spouse, you may be reading the will and wondering whether what it gives you is all you are entitled to. In Newfoundland and Labrador, the Family Law Act can give a surviving spouse a separate claim, and it works alongside the will rather than replacing it.

This article explains how those rights fit with a will or an intestacy, the deadline to apply, and what else you may be able to rely on.

This article covers the law of Newfoundland and Labrador.

Family Law Act rights come on top of the will

Rights a surviving spouse has under the Family Law Act are in addition to rights arising on intestacy or by will. The Act contains no section requiring a surviving spouse to elect between the will and the Act. So accepting what the will gives you does not, on the text of the Act, cancel a Family Law Act claim.

For these applications, "spouse" means persons married to each other, persons in a voidable marriage not yet voided, or persons who went through a good-faith void form of marriage and are cohabiting or cohabited within the preceding year. For applications it includes a widow or widower.

The equal division claim and its deadline

A surviving spouse may apply to divide matrimonial assets equally within 1 year after the first spouse's death. That deadline can be extended under section 83 on reasonable grounds, good-faith delay and no substantial prejudice.

How the division is calculated depends on which assets count as matrimonial assets and how they are valued. Those questions turn on the facts, so a lawyer or accountant can help you work through them. Gather records of property, accounts, debts and pensions on both sides.

If the matrimonial home was held jointly by spouses, a joint tenancy creates a right of survivorship in the surviving spouse and vests beneficial ownership without probate or estate administration. That home may therefore pass to you outside the will.

If there is no will: the intestacy shares

When someone dies without a valid will, the Intestate Succession Act sets out who inherits. The spouse's share depends on whether there are children.

Where there are issue and no spouse, the estate is divided per stirpes among the issue. Whether a cohabiting partner inherits on an intestacy is something to confirm with a lawyer. The administration of an intestate estate goes first to the spouse under the priority rules, subject to the judge's discretion.

Another route: the Family Relief Act

A dependant, meaning a spouse, cohabiting partner or child, may apply where a will does not make adequate provision for maintenance and support, or where an intestate share is inadequate. The application must be made within 6 months after the grant, though a judge may allow it for any undistributed part of the estate.

A cohabiting partner needs continuous conjugal cohabitation outside marriage for at least 2 years, or at least 1 year if they are together the biological or adoptive parents of a child. The judge considers factors that include the dependant's finances, the relationship with the deceased and any Family Law Act rights.

The two routes have different purposes and different deadlines, so it is worth considering both at the same time.

What to do next

• Note the date of death, since the 1-year Family Law Act deadline runs from it.
• Find out whether a grant has been issued, since the 6-month Family Relief Act period runs from it.
• Collect statements and records for all property, accounts, debts and pensions.
• Confirm how the home and any joint accounts were held.
• Hold off on signing releases or accepting a final distribution until you have advice.
• Speak with a lawyer about both routes and the amounts involved.

Frequently asked questions