Can a Surviving Spouse Claim Family Property Equalization in Manitoba?

When someone dies in Manitoba, the surviving spouse or common-law partner may have a right that sits alongside, and sometimes instead of, whatever the will or the intestacy rules give them. That right is an accounting and equalization of family assets under The Family Property Act. It can matter a great deal if the will leaves little to the survivor.

This article explains how the claim works, who can start it, the deadlines, how assets are counted, and what an executor needs to know before handing out estate property. It is general information, not advice on your situation, and the details turn on the facts, so a lawyer can confirm how it applies to you.

This article covers the law of Manitoba.

Who can claim, and who must start it

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

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

Under The Intestate Succession Act, 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. Whether someone qualifies as a common-law partner for the equalization rules in your case is worth confirming with a lawyer.

The deadline and the notice to the survivor

The survivor's limitation period is six months from the grant of probate or letters of administration. The clock runs from the grant, not from the date of death.

The court may extend that period for undistributed estate property in some situations: 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 are discovered after the period ends.

The personal representative must serve the survivor with a prescribed notice within one month after the grant. How the timing of that notice fits with the six-month period in your case is worth confirming with a lawyer.

What counts, and what the survivor keeps

Assets are valued as of the date of death if the spouses were living together then. Otherwise the valuation date is the date of last cohabitation. Funeral and testamentary expenses are left out of the equalization calculation.

Some property that does not pass through the will still counts as the deceased's, to the extent no adequate consideration was received. The survivor's own assets are exempt from the accounting.

The table summarizes the categories in the Act. How a particular asset is classified can be technical, so valuation questions are a good reason to get advice.

Will gifts, intestate shares and the survivor's choice

The equalization payment is reduced by any share the survivor takes under The Intestate Succession Act, and, subject to s. 43, by the value of gifts to the survivor under the will.

The survivor keeps the right to take under the will and not under the Act, so the survivor may choose between the will gift and the equalization claim.

If a payment is owed, it is a debt of the deceased. It is paid after other liabilities but ranks ahead of gifts under the will. Unless the will says otherwise, it is paid from the interests of beneficiaries other than the survivor, in proportion to value.

There is a limit: 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 Part IV rights unless the survivor specifically waived or released them.

Executors: when is it safe to distribute?

A personal representative must not distribute the estate until the survivor consents in writing, the time to apply has expired without an application, or an application has been decided. A representative who distributes contrary to this is personally liable for the survivor's loss.

• Confirm the date of the grant and note the six-month period that follows it.
• Serve the survivor with the prescribed notice within one month after the grant.
• Get the survivor's written consent, or wait until the time expires or a claim is decided.
• Gather information on joint property, registered plans and insurance, since some of it may count.
• Ask a lawyer before any distribution if a claim might be made.

Separated survivors and what to do next

A surviving spouse is treated as having predeceased for intestacy purposes if the spouses were living separate and apart at death and a divorce or Family Property Act accounting or equalization application was made during the separation, or they divided their property to finalize the breakdown. For common-law partners, the rules include dissolution of a registered relationship, or three years living separate and apart.

Being shut out of intestacy does not end the matter. A survivor in that position may still apply for an accounting and equalization if property matters were not already settled, and may also have rights under The Homesteads Act. A separated spouse's Family Property Act rights take priority over rights under The Intestate Succession Act, and are in addition to Homesteads Act rights.

• Survivors: find the date of the grant and diarize the six-month deadline right away.
• Collect any marriage, cohabitation or separation agreements and any property-division paperwork.
• Executors: do not distribute until one of the three conditions is met.
• Speak to a lawyer early about whether to take under the will or claim equalization.

Frequently asked questions