Your Spouse and Dependents
Spouses:
In Ontario, each spouse can claim one-half the gain in the couples’ net family property accumulated during the marriage. Although the Family Law Act defines a spouse as either a man or woman who are married, Courts have recently held that to be consistent with the Charter of Rights, spouse should include common-law or same-sex relationships. (Please speak to your lawyer for details).
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 purchased before the marriage. Other items are not shared at all, including gifts and inheritances received during the marriage, damages for personal injuries, life insurance proceeds, and some other matters.
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 what he or she is to receive under the Will (or if there is no Will, what is provided for by intestacy).
Your spouse may have an additional claim for support as a “dependant”—see the discussion below. A spouse, for the purpose of support (and not equalization of net family property), includes common law relationships of three years duration or more.
Your spouse may also claim compensatory support, if he or she made contributions to the marriage to an extent not reflected by an equalization of net family property.
Dependants:
A “dependant” means your spouse (including a common law spouse), 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 a lump sum to your dependant, or ongoing 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:
Creditors, including tax collectors, must be paid prior to distributing to your beneficiaries. It is your Trustee’s job to pay these debts; if there is not enough money, then some of the debts may have to be paid proportionately.