We’re married. What happens to my partner’s property if they die?

3. Compare your options

If your partner’s will is valid, compare what you would get from

  • an or
  • your partner’s will

If your partner’s will isn’t valid or if they didn’t make a will, compare what you would get from

  • an equalization payment or

Equalization payment

You calculate the equalization payment as if you and your partner had separated and divided your property. But there are a few special rules on how to calculate equalization after one partner dies.

If you separated before your married partner died, you value property on the date you separated. But if you were not separated when your married partner died, you value property on the day before your married partner died.

There are also some special rules on how to calculate the equalization payment if your partner left gifts for you in their will. Depending on what the will says, you might get these gifts in addition to an equalization payment.

Valid will

Read your partner’s will carefully to see what property is left to you. Calculate the value of what they left you. If the will is valid, your partner is generally allowed to deal with their property after death however they want.

But there are some things that they must do. If they have a legal duty to support a child, a former partner, or other dependants, the will must leave enough to take care of those people. They might have this duty even if there was no or agreement that said so when they died.

If the will didn’t leave enough, a dependant can go to court and ask for the will to be changed to give them support. This is called a “dependant’s support claim”.

No will or if the will isn’t valid

If there is no will, or if the will is not valid, the intestacy rules say that you get the first $350,000 of your partner’s property. Any amounts over $350,000 are shared between you and your partner’s children or grandchildren, if any. If there are no children or grandchildren, you get all of your partner’s property.

On March 1, 2021, the amount of the preferential share increased from $200,000 to $350,000. This increase only applies to the estates of those who die intestate on or after March 1, 2021. For those who died intestate before March 1, 2021, the preferential share is $200,000.

Comparing your options can be complicated. This is especially true if there are special rules to apply to calculate an equalization payment or if there is a dependant’s support claim. You can talk to a lawyer who can also explain your options.

If you can’t afford to hire a lawyer for your whole case, some lawyers provide “unbundled” or “limited scope” services. This means you pay them to help you with part of your case.

If you can’t afford to hire a lawyer, you may be able to find legal help in other places.

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