Significant Changes To Intestacy, Including Spousal Share Increased

WESA #14 – Significant Changes To Intestacy, Including Spousal Share Increased

Where there are no descendants of the deceased, a spouse will still inherit the entire estate on an intestacy under WESA. There are however significant changes when there are descendants of the deceased person in addition to a spouse.

Section 21 of the WESA provides that where a spouse and descendants survive an intestate person,  the spouse receives the household furnishings and the spousal “preferential share”.

Of significance is that the spouse no longer has the right to live in the spousal home for the remainder of his or her life .


The amount payable under the spousal preferential share is dependent upon whether the surviving descendants are descendants of both the deceased spouse and business the surviving spouse  or not.

If all the descendants are from the deceased spouse of the surviving spouse, then the spouses preferential share is $300,000 .

However if the deceased spouse’s descendants are not also descendants of the surviving spouse, then the spousal preferential share is reduced to $150,000  ( it had been $65,000 for several decades)

Accordingly if there are children from a previous relationship of the deceased person the preferential share of the surviving spouse is reduced to acknowledge that these children have no claim against that surviving spouse’s estate

It appears from the language used in section 21 (4),  that only one child born outside of the marriage is necessary  to result in this latter distribution

The residue of the estate after distribution of the spousal preferential share is divided one half to the spouse and one half to the descendants in the manner prescribed by section 24, which essentially prescribes a per stirpes  distribution beginning with the first generation in which there are living descendants.

The apportionment is the same regardless of the number of descendants

Spousal Option to Purchase Home

As previously stated there is no longer a life estate in the spousal home available to the surviving spouse.  Instead a surviving spouse under WESA is entitled to an option to purchase the spousal home in which the deceased person and his or her spouse were ordinarily resident.

Sections 27-35 set out the terms of the option to purchase some the mechanisms for dealing with it .

In a nutshell, the surviving spouse has 180 days from the date of the representation grant ( formerly known as probate  or grant of administration ),  in which to exercise the option to purchase the spousal home.

The court can extend the 180 day  deadline  in appropriate circumstances.

There is a corresponding prohibition against the personal representative of the estate disposing of the spousal home within 180 days of  the representation grant, without the spouses consent.


Recommended Posts