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Estate Planning

Estate Litigation: Family Property Rights for the Living Spouse

Clock7 min. read
byPaige E. Van de Sype, Associate at McKercher LLP onApril 21, 2021

On the death of a spouse, the surviving spouse can exercise the same property rights as they would on the breakdown of a spousal relationship. Learn more about the estate law considerations for living spouses from associate lawyer Paige E. Van de Sype with McKercher LLP.

On the death of a spouse, the surviving spouse can exercise the same property rights as they would on the breakdown of a spousal relationship. Of course, it only makes sense to bring such an application if they would receive less under the Will or intestacy (plus any joint assets they automatically receive) than they would have received on a breakdown of a spousal relationship in accordance with The Family Property Act. The surviving spouse needs to bring a family property application within six months from the date of issue of a grant of probate or administration.[i]

Such an application cannot be brought on behalf of the deceased spouse.[ii] This does not preclude a personal representative of a deceased spouse from continuing an application commenced by the deceased spouse when they were living.[iii]

On an application by the surviving spouse, the Court will consider the threshold question of whether the parties were in a spousal relationship. Of course, parties who were legally married would easily pass this threshold.  If they were not married, then they must have been “cohabitating” with the deceased person as spouses “continuously” for at least 2 years at the time of the spouse’s death.[iv] When determining spousal status in contentious circumstances the Saskatchewan Courts have enumerated several factors, none of which are determinative, but include considerations of the living arrangement, the intimacy of their relationship, their household duties, their financial responsibilities, their property arrangements, their community’s interpretation of their relationship, and if any documents declare their relationship status.[v]

If the Court is satisfied that the parties were in a spousal relationship, then the Court will need to identify the value of the spouse’s inheritance by operation of the Will or the intestacy legislation, while including the value of any joint assets.[vi] The Court will then identify the value of the divisible family property.

When determining the value of divisible family property, the Court is firstly concerned with identifying the “family property”, which includes real or personal property either spouse owns or has an interest in as of the date of the petition (the date the surviving spouse’s claim issues).[vii] 

The Court is concerned with determining the surviving spouse’s share of those assets “as if the deceased spouse had not died”.[viii] In doing so, the Court will also exempt the value of the family property (not including the “family home” or “household goods”) at the start of the spousal relationship if it was owned by the spouse prior to their spousal relationship. The value of exempt property can also be traced to assets purchased during the spousal relationship. This exemption does not apply to the family home or household goods.[ix]

The Court may also reduce a spouse’s divisible interest in family property by virtue of equitable principles, such as the length of the relationship, length of a separation (if still married), when the property was acquired, third party contributions, gifts, written agreements or dissipation of assets.

The executor or administrator for the estate of the deceased spouse will also be compelled to act in the deceased spouse’s and beneficiary(s)’s interests, which may include advancing evidence and arguments to limit the divisible family assets by operation of the exemptions and equitable considerations.

The parties, or their counsel, will need to articulate and advance any relevant equitable considerations as they are found in the legislation, caselaw, and, if the facts warrant it, seek to expand upon the existing common law or advance novel considerations. The identification, valuation and ultimate division of family property is highly discretionary and fact-dependant.

The Court will order the distribution to the surviving spouse in accordance with either the Will or Intestacy Succession Act, or the estate will be subject to a family property order. If the family property application results in a more sizeable “inheritance” for the surviving spouse, then the family property application will succeed. If the amount is lower, the family property claim will fail and the assets will be distributed according to the Will or intestacy legislation.

If there are no provisions made in a Will for the surviving spouse, a family property application will also be supplemented with an application pursuant to The Dependants’ Relief Act. For more information, please view the related blog post: Dependants’ Relief Legislation: What to do when your inheritance from a deceased parent or spouse is inadequate to meet your needs?

About the Author:

Paige is an associate in the Saskatoon office where she practices primarily in estate litigation and provides related services in estate planning, estate administration and guardianship or co-decision-making applications, while maintaining a general civil litigation and family law practice.

About McKercher LLP:

McKercher LLP is one of Saskatchewan’s largest, most established law firms, with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have helped our firm to rank in the top 5 in Saskatchewan by Canadian Lawyer magazine (2019/20). Integrity, experience, and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions.

This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.


[i] The Family Property Act, SS 1997, c F-6.3, s 30.

[ii] Sibley v Sibley, 2011 SKQB 336 (WL) at para 13, 383 Sask R 5; Edward v Edward Estate (1987), 57 Sask R 67 (WL) (SKCA) at para 46; The Family Property Act, ibid, s 30 and 36.

[iii] Edward v Edward Estate (1987), ibid at para 46; The Family Property Act, ibid, s 30(1).

[iv] The Family Property Act, ibid, s 2.

[v] Yakiwchuk v Oaks, 2003 SKQB 124 (CanLII) at para 8 to 18; Molodowich v Penttinen, 1980 CanLII 1537 (ONSC) at para 16.

[vi] Edward v Edwards Estate (1987), supra note 2 at para 46 – 49.

[vii] The Family Property Act, supra note 1, s 2.

[viii] Edward v Edwards Estate (1987), supra note 2 at para 46; Hurton v Lafayette Estate, 2018 SKQB 99 (WL) at para 14, 291 ACWS (3d) 119.

[ix] The Family Property Act, supra note 1, s 23.

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