Dying Without A Will
- PPI
- Jun 10
- 2 min read
(a) For a married person with children, what is the division of assets upon an intestacy?
Summary
On intestacy, the surviving spouse is entitled to a $50,000 preferential share. The spouse may elect to take the matrimonial home in lieu of the $50,000 preferential share. After the preferential share, the distributive share is divided among the spouse and children. If there is only one child, the spouse and the child share the residue of the estate equally. If there is more than one child, the spouse is entitled to one third of the estate, and the remainder is divided among the children per stirpes.
Discussion
In Nova Scotia, where a person dies without a will (or where a will does not fully dispose of the testator’s property), the deceased’s property is divided according to the formula set out in the Intestate Succession Act, RSNS 1989, c 236 (the “NS ISA”).
Note that common-law spouses are not considered to be spouses under the NS ISA, unless they have registered as Registered Domestic Partners under Part 2 of the Vital Statistics Act of Nova Scotia.
In the case of a married person with children, the division under the NS ISA is as follows: First, the spouse of an intestate is entitled to a preferential share of the estate (s. 4(1) and 4(2)). The size of the preferential share is $50,000. The spouse may elect instead to take the matrimonial home in lieu of the $50,000 preferential share (s. 4(4)).
Second, after the preferential share, the distributive share is divided among the spouse and child(ren) of the intestate per s. 4(5). If the intestate leaves a spouse and one child, then each takes half of the remaining estate (s. 4(5)(a)). If the intestate leaves a spouse and more than one child, one-third of the remaining estate goes to the spouse, and the remaining two-thirds is divided among the children per stirpes (per familial branch) (s. 4(5)(b)).
(b) What is the division for an unmarried person with no children?
First, to the intestate person’s parent or parents; second, if both parents are predeceased, to the person’s brothers and sisters (with representation of deceased sibling by his or her children per stirpes); thereafter, proceeding to remoter ancestors or collateral next-of-kin.