estate law, will, wills, estates, poa

Your Spouse and Dependents

Are the needs of your dependants will be met after your death?

Family Law

In Ontario, each married spouse can claim one-half the gain in the couples’ net family property accumulated during the marriage. To calculate the net family property gain, each spouse sums their net assets before the marriage and upon dissolution of the marriage; the difference in their net gains is split equally.

Some property is excluded from the calculation, such as the matrimonial home—which is divided equally even if it was purchased before the marriage. Other items are not shared at all, including gifts and inheritances received during the marriage, damages for personal injuries, and life insurance proceeds.

On your death, your surviving spouse has six months to choose whether to claim his or her share of the increased net family property during the marriage, or whether to accept his or her entitlement under the Will or intestacy, as the case may be.

Your spouse may also claim compensatory support, through a constructive trust, if he or she made contributions to the marriage to an extent not reflected by an equalization of net family property; for example, if one spouse sacrificed his or her career to raise children and the other spouse benefited.

Dependant Support

Your spouse may have an additional claim for support as a “dependant.” A “dependant” includes a spouse (including a common law spouse who cohabited for three years or more), child, parent, or sibling to whom you were providing (or legally should have been providing) support prior to your death.

The Court can order your estate to support your dependants. The amount and duration of support depends on a number of things, including your dependant’s needs and your estate’s ability to pay.

The Court can order your estate to pay to your dependant a lump sum or periodic payments (such as annual or monthly payments). The Court can order that property be transferred to a dependant, either outright, in trust, for life, for a period of time, or as security for the payment of support.

Other claims

Your Estate trustee must pay creditors, including tax collectors, prior to distributing any assets to your beneficiaries. If there is not enough money in the Estate to pay the creditors, the beneficiaries will receive nothing and the creditors may have to be paid proportionately.

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