Rights on Death

A number of pieces of legislation become important to a family once a spouse or common-law partner has died, even if there is a will. This section outlines the legislation that will affect property rights when a death occurs.

What are the rights of children whose parents were unmarried?

Children of unmarried parents have the same rights as those of married parents to inherit from both their parents, and from other relatives. The Intestate Succession Act, The Dependants Relief Act and The Fatal Accidents Act all apply to the children of unmarried parents.

Are the rights of a surviving common-law partner different than those of a legally married spouse?

Before June 30, 2004, a common-law partner was not entitled to receive the same property from the estate of their deceased partner as a legally-married spouse, regardless of how long the relationship lasted. These laws were changed, along with many other laws dealing with property rights, as part of The Common-Law Partners’ Property and Related Amendments Act. See the sections of this chapter on The Family Property Act and The Intestate Succession Act for information on how those laws apply to common-law partners.

A common-law partner can also ask a judge to order support from the deceased’s estate under The Dependants Relief Act if:

the parties lived together for at least one year and had a child together
they lived together for at least three years
they registered their common-law relationship with the Vital Statistics Agency
they were either living together when the death took place; or
they had lived together within three years of the death.

A claim for support from the estate can also be made by a common-law partner who was entitled to support from the deceased under an agreement or court order in place at the time of the death.

A common-law partner is entitled to receive any property left to him or her in a partner’s will or otherwise (e.g., life insurance benefits, funds in an RRSP). If the partners jointly owned property, the surviving common-law partner may become the sole owner on his or her partner’s death.

Common-law partners may also be entitled to survivor’s benefits under the Canada Pension Plan, The Pension Benefits Act of Manitoba and/or the federal Pension Benefits Standards Act, 1985.

A common-law partner may also be able to claim rights to specific property of his or her deceased partner, even if he or she doesn’t qualify as a common-law partner under any of the laws described above. It must be proved that the partner contributed to acquiring, improving or maintaining the property in question, and should therefore be compensated for the contribution. To claim a right to property in these circumstances, an application to court is necessary.

How are property rights determined on the death of a spouse or common-law partner?

The Homesteads Act

The Homesteads Act gives the surviving spouse or common-law partner who has homestead rights, the right to live in the family home (homestead) for the rest of his or her life, even if the property was owned only by the deceased spouse or partner. To qualify as a common-law partner under The Homesteads Act, the couple must have either registered their relationship with the Vital Statistics Agency or they must have cohabited in a conjugal relationship for at least three years.

In the case of a family farm, the homestead includes not only the farm dwelling, but up to 320 acres of land. This is known as a life estate in the home and exists no matter what the will of the deceased person provides. This protection remains in place even if the will of the deceased spouse or common-law partner leaves little or nothing to the survivor.

The claims of creditors, however, can affect this right. It is important to know that only one spouse or common-law partner at a time can have homestead rights in a particular home, and a second spouse or partner will not acquire these rights until the homestead rights of a previous spouse or common-law partner are properly dealt with (e.g., by the first spouse or common-law partner signing a written release of their rights).

The Family Property Act

The Family Property Act sets out the rules for dividing the value of family property between spouses or common-law partners when they separate, as well as when one spouse or partner dies. To qualify as common-law partners under this Act, a couple must have either registered their relationship with the Vital Statistics Agency or have cohabited in a conjugal relationship for at least three years. Generally, family property is any property that the couple acquired while they were married or cohabiting and living together, regardless of which member of the couple owns the property.

Both spouses or common-law partners have the right to an equal share of the value of their family property. If a spouse or common-law partner is unhappy with the assets left to them in the other’s will, he or she may wish to consider asking the court for an accounting and equalization of family property. An accounting involves preparing a complete list of each spouse’s or partner’s assets (including their value) and debts. The court will determine the total value of the assets each spouse or common-law partner must account for, and how much the spouse or partner with more assets will have to pay the other, so each will have an equal share of family property. This is called an equalization payment.

The survivor’s share and any equalization payment owing will be calculated in much the same way as when spouses or common-law partners separate. If the spouses or common-law partners were separated when one died, the family property calculations will be as of the date of separation. If the spouses or common-law partners were not separated, then the date of death of the deceased spouse or partner will be used. Visit the Property section of this website for more information.

Unlike an accounting and equalization on breakdown of the marriage or common-law relationship, a court has no discretion to order that the value of assets be shared unequally on death. As well, a surviving spouse or common-law partner does not have to account for or share certain assets with the estate of the deceased spouse or partner, even if these assets would have been divided had they been separating.

For example, if spouses owned their home in joint tenancy, the surviving spouse will become the sole owner of the home on the death of the other spouse. They will not have to account for the value of the home and will be entitled to own the home over and above their entitlement to half of the value of their family property.

Similarly, a surviving spouse or common-law partner will receive any pension survivor’s benefits or, if named the beneficiary, life insurance proceeds payable on the death of the other spouse or partner, without having the funds taken into account in the family property calculation.

If there are insufficient assets in an estate to meet an equalization payment owed to the surviving spouse or common-law partner, other beneficiaries of the estate may have to contribute to make up the shortfall. This may also apply to persons who received certain benefits from the deceased person outside their will (such as a named beneficiary under a life insurance policy).

An application for an accounting and equalization of family property after the death of one spouse or common-law partner must be made (with limited exceptions) within six months of the granting of letters probate of the deceased’s will, or if the deceased left no will, the granting of letters of administration. If the surviving spouse or common-law partner had already applied to court for an accounting and equalization of family property when the other spouse or partner died, they need not re-apply.

What are the rights of surviving family members after a fatal accident?

If someone has been killed in an accident because of the wrongful or negligent act of a third party, that third party can be sued in court. The party may be ordered to pay compensation to the person’s surviving spouse or common-law partner, children, grandchildren, parents, sister or brother. To qualify as common-law partners under The Fatal Accidents Act, a couple must either have registered their common-law relationship with the Vital Statistics Agency or they must have cohabited in a conjugal relationship either for at least three years, or for one year if they have a child together. In any case, the couple must have been cohabiting immediately before the one partner’s death.

The Fatal Accidents Act also makes it clear that the term parents includes grandparents, step-parents and people who stood in place of a parent (in loco parentis) to the deceased person. The term child includes a step-child and one to whom the deceased person stood in place of a parent.

The Workers Compensation Act and The Manitoba Public Insurance Corporation Act each provide for compensation payments to dependant family members of a person who has died under circumstances covered by that Act.

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