On an intestacy, each Canadian province and territory provides for a mandatory scheme to distribute a deceased person’s property, which is typically between their surviving spouse and children, if any, and alternately to other relatives.
Ontario lags behind some of the other provinces and territories with respect to who is considered a spouse and the preferential share to which he or she is entitled on an intestacy.
The definition of “spouse” differs under intestacy rules across Canada:
- In Ontario, Quebec, New Brunswick, Newfoundland, and Yukon, only married spouses are considered “spouses,” including same-sex married spouses.
- In British Columbia, Alberta, Saskatchewan, Manitoba, Prince Edward Island, and Northwest Territories, common law partners are considered “spouses” in addition to married spouses.
- Nunavut and Nova Scotia are also included under the second category, but only if the partners are registered domestic partners.
In the provinces and territories where partners are not legally married and are not captured under the definition of “spouse”, the surviving partner will only have equitable remedies available to them to make a claim against their partner’s estate. These remedies are subject to a court’s discretion, unlike intestacy rules which are an automatic absolute right.
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