If your spouse dies, you may find yourself in a financially precarious position at what can be a very traumatic time of loss and grief. Typically, a spouse will be the major beneficiary of their deceased’s spouse’s estate. However, in some cases a Will has not been updated or a spouse may be excluded from the Will. In other cases, there may be insufficient provision for a surviving spouse under the Will (or under the intestacy rules where there is no Will).
In circumstances where spouses have separated and one dies, there are also further potentially significant legal implications. For instance, one spouse may have still been financially supported by the deceased spouse at the time of death – but has been cut out of the Will. The law provides a method by which you may be able to make a claim for financial support from your spouse’s estate.
Spousal support claims
As the spouse, you will be considered a “dependant” for the purposes of a dependant’s spousal support claim under Part V of the Succession Law Reform Act. The definition of “dependant” also includes any child of the deceased who the deceased was providing for, or had a legal obligation to provide support to, at the date of death. This means, for instance, if you have any dependent children – they may also be able to make a claim.
Applications for interim support can also be made if required and we can advise you if this a route to pursue. Whilst an application for spousal support is being considered by the court, the law allows for the freezing of the distribution of the assets of the estate until your claim is determined.
For a claim to succeed, your late spouse or former spouse must have been providing support immediately before death, or was under a legal obligation to do so, for instance, under a court order. Even a moral obligation can be sufficient: in the 2010 ruling in Middel v Vandentop, we successfully secured an order for support out of a deceased estate for the ex–wife. She had divorced the deceased some 35 years earlier, but the court found there was a moral obligation to support her. Read more about this case here.
The court will consider whether your late spouse or former spouse made adequate provision for your proper support. The court will consider the terms of the Will (or the provision you are entitled to under the intestacy rules in the absence of a Will) and decide what is adequate support – both now and in the future. This depends on the facts of the case, and various factors will be considered in determining what will be adequate support. We will discuss those factors with you and how they relate to your particular claim.
If your claim is successful, the court may order payment from the income and/or the capital of the estate. It can also impose appropriate conditions and restrictions in relation to those payments.
What should I do?
If you need to make a claim for spousal support from your late spouse’s estate, contact us urgently. It is vital to take expert legal advice as early as possible. A claim must be made promptly because your application should be made within 6 months from date of issue of the Certificate of Appointment of Estate Trustee.
Spousal entitlements where there is no Will
In Ontario, if your spouse died intestate (without a Will) you will not automatically inherit all of the estate, nor will you have the right to decide how the estate is divided. The Succession Law Act dictates what you will receive from your late spouse’s estate where there is no Will:
- If there are no children, you will inherit the whole estate
- If there is one child, you will inherit the first $200,000 and the remainder will be divided equally between you and the child
- If there is more than one child, you will inherit the first $200,000. The remainder will be split as follows: one‐third to you; two‐thirds to the children divided equally; and if only grandchildren survive, they would share the estate equally
If you believe you should inherit more than what are you are entitled to under the intestacy rules, you can make an application to court for further financial support from the estate.
Making a Will
The above illustrates how vital it is to make a Will so that there is as much as certainty as possible should you die. It is important to review and change your Will is you separate because until your divorce is finalised, any existing Will remains valid in relation to your spouse’s rights under the Will.
Also consider executing a Power of Attorney in favour of someone you would trust to look after your affairs, and health and welfare, in the event you are incapacitated. Otherwise your spouse will lawfully have control of your affairs and be able to make critical decisions about your health and welfare.
However, do note that even if you change your Will – your spouse may still be entitled to financial support if you were financially supporting them in the event of your death.
How can we help?
We are highly experienced Family and Estates lawyers and will provide you with sympathetic but strategic advice. If your spouse has died and you believe you have a potential claim for financial provision from the estate; if you are separating and you want to protect your estate and affairs, get in touch for urgent advice before time runs out.
Contact Us now at (416) 504 2259 to talk to an asset protection lawyer. Rogerson Law Group provides family law and estates services in the entire Greater Toronto area including Toronto, Scarborough, Mississauga, Vaughan, Brampton, Richmond Hill, Etobicoke, Hamilton and Barrie with offices located in Downtown Toronto and Barrie.