Authors: Alain Gaucher, Q.C., Erin Bokshowan, Katrina Wagner
On October 1, 2019, The Intestate Succession Act, 2019 was proclaimed into force. This legislation repeals The Intestate Succession Act, 1996, and makes significant changes to Saskatchewan’s intestate succession laws.
When a person dies intestate, meaning they do not have a valid will, provincial intestate succession legislation determines how their estate is divided. Intestate succession legislation also applies to any portion of the estate not distributed by a valid will.
The following notable changes are effective as of October 1, 2019:
- Where the intestate died leaving a spouse and one or more children, and all of the intestate’s children are also the natural or adopted children of the surviving spouse, the intestate’s spouse now receives the entirety of the estate.
- Where the intestate died leaving a spouse and one or more children, and one or more of the intestate’s children are not the natural or adopted children of the surviving spouse, the surviving spouse will receive a preferential share of the intestate’s estate equal to the greater of $200,000 or one-half of the estate, and thereafter, the estate is divided as follows:
- Where the intestate had one child, the remainder of the estate will be split equally between the surviving spouse and the intestate’s child; and
- Where the intestate had more than one child, the surviving spouse will receive 1/3 of the remaining estate and the intestate’s children will share, in equal proportion, the remaining 2/3 of the intestate’s estate.
- There are new rules for determining when the intestate’s spouse is no longer entitled to any portion of the intestate’s estate. For example, if a married couple had been living separate and apart for two years at the time of the intestate’s death, the spouse of the intestate does not receive any of the intestate’s estate despite still being legally married. These changes are aimed at providing for the equal treatment of married spouses and common law spouses under the legislation.
- The legislation now clarifies that the intestate’s immovable property (land) located in Saskatchewan shall be governed by the laws of Saskatchewan regardless of the intestate’s residence.
- The doctrine of advancement in The Intestate Succession Act, 1996 has been removed. (The doctrine of advancement is a legal presumption that if a person gifted property to their spouse or their child during their lifetime, absent evidence to the contrary, that gift was an advancement on what the spouse or child would have inherited from said person when that person died intestate.)
- The Intestate Succession Act, 2019 also changes the default distribution system where an intestate dies without a spouse, children or grandchildren.
The default rules for the distribution of an intestate’s estate that are provided for in The Intestate Succession Act, 2019 can be avoided by a person who creates a will that provides for the fixed distribution of their estate. Our estate planning lawyers can help you craft an appropriate will and estate plan to ensure your wishes are carried out after your death.