Surviving Spouse in Nova Scotia: Will or Matrimonial Property Act?

You have just read the will and it leaves you less than you expected. You may be wondering whether accepting what the will gives you means giving up anything else you could claim as a spouse. That worry is common, and the timing of any claim matters more than most people realize.

This article walks through how the will and the Matrimonial Property Act generally relate in Nova Scotia, the deadlines that apply, and the practical steps to take. Your facts, such as the date of the grant and what has already been distributed, can change the picture, so a lawyer should review them.

This article covers the law of Nova Scotia.

Do you have to choose?

Under the Matrimonial Property Act, a surviving spouse can apply to divide matrimonial assets after a spouse's death. That right is in addition to rights on intestacy or under the will. In plain terms, taking what the will gives you does not by itself cancel the right to apply.

Whether a claim is worth making, and what assets would be divided, depends on the facts. That is a question for a lawyer who can look at the will, the assets and the marriage history.

The six-month clock

The survivor's application to divide matrimonial assets must be made within six months after probate or administration is granted. The clock runs from the grant, not from the date of death.

There is an exception. The court may extend the time where the survivor did not know of the grant or lacked adequate opportunity to apply. A late application, however, reaches only assets that have not yet been distributed.

This is why delay is risky. Once assets have gone out to beneficiaries, there may be less left to reach.

A second possible claim: family maintenance

The Testators' Family Maintenance Act is a separate law from the Matrimonial Property Act, and how it applies to you depends on your situation, so it is worth confirming with a lawyer. 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). A judge may suspend administration of the estate. Its time limit is separate from the Matrimonial Property Act deadline, so each one needs its own date in your calendar.

Which claim suits your situation, or whether both do, is something a lawyer can assess. Do not assume one rules out the other.

Married, common-law and the estate process

Marital status matters. On an intestacy, unmarried common-law partners have no rights under the Intestate Succession Act; only married spouses and registered domestic partners count. If you were not married or registered, ask a lawyer early what rights you may have under the will or other laws.

Meanwhile, the executor has steps of their own. Notice of the grant must be served within 30 days on each person who is or may be entitled to share in the estate. Estates are advertised in the Royal Gazette for six months before they move to distribution. Distributing early can expose a representative to personal liability for unpaid claims, which is one reason an executor may want to wait.

Some assets may pass outside the will altogether. Land held as a joint tenant passes by survivorship without a grant. Whether an asset counts as matrimonial property is a separate legal question that depends on the facts.

What to do next

• Find out the exact date the grant of probate or administration was issued. The Registrar of Probate for the district keeps estate records.
• Write the six-month dates for both possible claims in your calendar.
• Check whether you have received the notice of the grant, which the personal representative must serve within 30 days after the grant on each person who is or may be entitled to share in the estate.
• Ask whether any assets have already been distributed, since late claims reach only undistributed assets.
• Collect marriage documents, financial statements and property records.
• Speak with a lawyer before the six months run out, and before you sign any release.

Frequently asked questions