The LEGAL/JUSTICE POST

Talk about anything.

Moderator: Global Moderator

User avatar
Webscout
Administrator
Administrator
Posts: 30367
Joined: Thu Dec 28, 2006 8:43 am

CDN:What is a Wife Entitled to if her Husband Dies Without a Will?

Post by Webscout » Sun Jan 05, 2020 7:07 am

What is a Wife Entitled to if her Husband Dies Without a Will?
In Ontario, the Succession Law Reform Act and the Family Law Act intersect to create rights for the surviving spouse (husband or wife) of the deceased.

Code: Select all

https://www.ontario.ca/laws/statute/90s26
The Family Law Act

Code: Select all

https://www.ontario.ca/laws/statute/90f03
defines a spouse as a married person, and the term spouse in this act does not include co-habiting parties or common law partners. Under this Act, a married spouse is entitled to receive one-half of the amount by which the deceased’s net family assets exceed the net family assets of the surviving spouse. This “equalization payment” ensures that the surviving spouse has the opportunity to share equally in any increase in the value of the property that the couple earned over their marriage. The surviving married spouse must elect to accept this payment OR to take what they are entitled to under Part II of the Succession Law Reform Act.

Under the Family Law Act the married spouse also has the right to remain in possession of the matrimonial home for a period of 60 days following the death of their spouse, on a rent-free basis.

On the other hand, the Succession Law Reform Act gives all spouses (married and common law) whose spouse dies without having made a valid will a preferential share, being the right to receive the first $200,000.00 of assets from their deceased spouse’s estate, and in addition they have the right to share in the balance of their deceased husband’s estate as set out below. The surviving spouse must choose between the entitlement to equalization and the property rights that they would receive under the Succession Law Reform Act.

User avatar
Webscout
Administrator
Administrator
Posts: 30367
Joined: Thu Dec 28, 2006 8:43 am

CDN:A transgender beneficiary................

Post by Webscout » Thu Jan 16, 2020 9:14 am

Wednesday, January 15, 2020

USA? I would think that this would apply, but check it out to be sure.

A transgender beneficiary now has a different gender and name from the will. Is that a problem?
Lynne Butler, BA LLB Canada

Sometimes the logistics of wills and estates procedures may appear to be more complicated than they really are. For example, a reader recently asked me an excellent question about any problems that might arise because a beneficiary named in a will has changed gender and name from that shown in the will.

Here is the question:

"I'm transgender, so I might be listed under a different name in the will, referred to with the wrong pronouns, etc., would that change anything?"

The good news is that even though very little has changed fundamentally with wills in the last 100 years or so, the processes and procedures do get updated (slowly, I admit, but we get there). The change in gender and name will not prevent the beneficiary from inheriting the share given in the will. There is a simple way to deal with this reader's dilemma.

Let's say the beneficiary was named in the will as "my niece, Sara Smith." Since the will was made, Sara has become Sam Smith, a male. Everything about this gift seems different from what's in the will, but it's the same person. The important part of the gift is not the designation as a female. The important part is that the aunt wanted to give a gift to a specific person. The obligation of the executor of the will is to carry out the intentions of the testator (the person whose will it is). This is also the goal of any judges who may be involved in the case; the testator's intentions are paramount, so ways and means must be found to make those intentions happen.

The easy solution is for the executor to describe the change in the affidavit that accompanies the application to the court for probate. Every probate application contains such an affidavit; all the executor has to do is modify it to ensure that the beneficiary's situation is made clear. This is the same sort of procedure that is used when a woman who was single when the will was drawn up later marries and takes her husband's surname. Her name might be different from what shows in the will as well, but it is easily explained.

The affidavit I have mentioned is, like all affidavits, sworn under oath before it is given to the judge. Because it is sworn, its contents are evidence before the court.

If the will is not probated and the estate is administered without ever going in front of a judge, the changes can (and should) still be addressed. The most likely time and place to address this is at the end of the estate administration when the executor provides his or her written accounting to the beneficiaries. To explain to the rest of the beneficiaries why a gift to Sara was given to someone called Sam, the executor would include a sentence indicating the changed circumstances.

Post Reply