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In an increasingly complex world, the Financial Post should be the first place you look for answers. Our FP Answers initiative puts readers in the driver’s seat: you submit questions and our reporters find answers not just for you, but for all our readers. Today, we answer a question from Peter about whether his father’s surviving spouse who was written out of the will is entitled to anything.
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Q. Is a surviving spouse entitled to an estate share even if being explicitly written out of a will? My father married his live-in caretaker a year before he died of Alzheimer’s disease. This would have allowed her to claim his Canada Pension Plan (CPP) payments after he passed. After they got married, he updated his estate documents and explicitly disinherited her from the will, which she seemed fine with. Fast forward and we are now in probate.
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The judge is moving toward a trial as there are five wills, three of which my father wrote after being diagnosed with dementia, and so everyone is arguing for a different will, including the surviving spouse. My question is, even though he wrote her out of the will, will the court entertain her petition for a spousal share? What are the chances she gets something? And should I challenge the marriage as well as the will? My father had dementia and wouldn’t have been able to read anything. —Peter
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FP Answers: Peter, Family Law rights are dictated by provincial legislation. I cannot speak about each provinces’ different family laws. In Ontario, where I am a lawyer, marriage is considered a partnership governed by Ontario family law. This specifies married spouses have property, support and inheritance rights.
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The short answer is that, in Ontario, wills cannot disinherit married spouses from rights to property. Married spouses have property rights to share in any matrimonial home and to share any increase in their family property during marriage. These rights can be specifically varied by marriage contracts or court orders.
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If your father married his caregiver, she has rights, in Ontario, to inherit property. She can accept what is in your father’s last will or elect to receive her property rights. These rights give her what she would be entitled to receive through a separation or divorce before your father died. After your father’s death, she can choose to claim her family law election for her property division. This must be claimed within six months of the date of your father’s death. Ontario court applications must be made and courts can extend this time period, if there is no prejudice.
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Without making an election, your father’s spouse can be deemed to accept your father’s last valid will. This does not, however, eliminate her rights in equity or her entitlement to support as a married spouse and dependant. When courts consider support, they can consider any support agreement between spouses.