What a Surviving Spouse Gets Under Manitoba's Family Property Act

When your spouse dies, you may be told that you inherit under the will, or under the intestacy rules if there is no will. Manitoba law gives you another route as well: an accounting and equalization of the couple's assets under The Family Property Act.

This article explains in plain terms who can use that route, how the calculation is built, how it fits with a will or an intestacy, and the deadlines that matter. Every estate is different, so use this as a starting point for a conversation with a lawyer.

This article covers the law of Manitoba.

Who can claim

Part IV of The Family Property Act sets equalization and accounting rules for when a spouse dies. They apply to married spouses and, equally, to common-law partners.

For the intestacy rules, a common-law partner is someone who registered the relationship, 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.

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.

How the equalization works

The calculation is made as of a valuation date. That is the date of death if the spouses were living together then, and otherwise the date of their last cohabitation. Funeral and testamentary expenses are left out of the calculation.

Some property that does not pass through the will is still counted as the deceased's, to the extent no adequate consideration was received. Examples are gifts made to take effect on death, jointly held property that passes to someone else by survivorship, registered plans payable to others, and insurance or other payments made because of the death.

Your own assets are treated differently. They are exempt from the accounting, including jointly held property that passes to you by survivorship, life insurance on the deceased's life, and registered plans payable to you.

• Valuation date: date of death, or date of last cohabitation
• Counted for the deceased: gifts on death, survivorship property passing to others, registered plans payable to others, death-related payments
• Exempt for you: survivorship property passing to you, insurance on the deceased's life, registered plans payable to you

How a will or an intestacy affects the payment

The equalization payment is reduced by any share you take under The Intestate Succession Act. It is also reduced, subject to section 43, by the value of gifts to you under the will.

If there is no will, the intestacy shares matter. If there is no surviving issue (descendants), the spouse or common-law partner takes the entire estate. That rule does not help a survivor who is treated as having predeceased the deceased, which can happen where spouses or common-law partners were living separate and apart in the ways the Act describes. The survivor also takes the entire estate if all of the deceased's issue are also issue of the survivor.

Where some children are not also the survivor's children, 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 children. Manitoba's government describes this as at least 75% to the survivor and at most 25% to the children, with the survivor taking everything if the estate is $50,000 or less.

You may also choose to take the gift in the will instead of the Act's route, so the will gift and the equalization claim are alternatives to compare.

Deadlines, notice and who applies

Only the survivor may apply for the accounting and equalization on death. The deceased's personal representative may not make the application. If a party dies in the middle of an application, the survivor or the personal representative may continue it.

The limitation period is six months from the grant of probate or letters of administration. The court may extend it for undistributed estate property if you did not learn of the death in time, the required notice was not served, circumstances beyond your control occurred, or new assets are found after the period ends.

The personal representative must serve you with a prescribed notice within one month after the grant. The representative must not distribute the estate until you consent in writing, the time to apply has passed without an application, or an application has been decided. A representative who distributes contrary to this is personally liable for your loss.

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

What to do next

Because the deadline runs from the grant, it helps to find out early whether an application for probate or letters of administration has been made. A lawyer can help you work out whether the will gift or the equalization claim is better for you.

• Find out whether a grant has been issued, and note its date
• Keep the notice the personal representative serves on you
• Gather records of both spouses' assets, debts and any agreements signed
• Collect statements for joint accounts, registered plans and insurance
• Do not sign a written consent to distribution until you understand your options
• Speak with a lawyer before the six-month period runs out

Frequently asked questions