The Intestate Succession Act

The Intestate Succession Act, C.C.S.M. c. I85 (Assented to March 15, 1990) bilingual version (HTML) Table of Contents Section 1 Interpretation 2 Share of spouse or common-law partner 3 Rights of separated spouse or common-law partner 4 Shares of children and other relatives 5 Distribution 6 Survival for 15 days 7 No successors 8 Advancements 9 Estate not disposed of by will 10 Application of The Homesteads Act 11 Application 12 Repeal 13 C.C.S.M. reference HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows: Interpretation 1(1) In this Act, "common-law partner" of an intestate means (a) a person who, with the intestate, registered a common-law relationship under section 13.1 of The Vital Statistics Act , or (b) subject to subsection 11(2), a person who, not being married to the intestate, cohabited with him or her in a conjugal relationship, commencing either before or after the coming into force of this definition, (i) for a period of at least three years, or (ii) for a period of at least one year and they are together the parents of a child; (« conjoint de fait ») "common-law relationship" means the relationship between two persons who are common-law partners of each other; (« union de fait ») "estate" includes both real and personal property; (« succession ») "issue" means all lineal descendants of a person through all generations; (« descendant ») "successors" means the persons who are entitled to the estate of an intestate through succession under this Act. (« successeurs ») Status of adopted child 1(2) For greater certainty, if the relationship of parent and child must be established at any generation in order to determine succession under this Act, the relationship shall be determined in accordance with the provisions of The Adoption Act respecting the effect of adoption. Kindred born after death of intestate 1(3) Kindred of the intestate conceived before and born alive after the death of the intestate inherit as if they had been born in the lifetime of the intestate. Kindred of the half blood 1(4) Under this Act, kindred of the half blood inherit equally with kindred of the whole blood of the same degree of kinship to the intestate. S.M. 1997, c. 47, s. 133 ; S.M. 2002, c. 48, s. 13 . Share of spouse or common-law partner if no issue 2(1) If an intestate dies leaving a surviving spouse or common-law partner and no issue, the entire intestate estate goes to the surviving spouse or common-law partner. If all issue of both intestate and surviving spouse or common-law partner 2(2) If an intestate dies leaving a surviving spouse or common-law partner and issue, and all of the issue are also issue of the surviving spouse or common-law partner, the entire intestate estate goes to the surviving spouse or common-law partner. If issue of intestate but not surviving spouse or common-law partner 2(3) If an intestate dies leaving a surviving spouse or common-law partner and issue, and one or more of the issue are not also issue of the surviving spouse or common-law partner, the share of the surviving spouse or common-law partner is (a) $50,000., or one-half of the intestate estate, whichever is greater; and (b) one-half of any remainder of the intestate estate after allocation of the share provided by clause (a). Reduction of preferential share in cases of partial intestacy 2(4) The maximum entitlement set out in clause (3)⁠(a) shall be reduced by an amount equal to the value of any benefits received by the surviving spouse or common-law partner under a will of the deceased. S.M. 2002, c. 48, s. 13 . Rights of separated spouse 3(1) If, at the time of the intestate's death, the intestate and his or her spouse were living separate and apart from one another, and one or both of the following conditions is satisfied: (a) during the period of separation, one or both of the spouses made an application for divorce or an accounting or equalization of assets under The Family Property Act and the application was pending or had been dealt with by way of final order at the time of the intestate's death; (b) before the intestate's death, the intestate and his or her spouse divided their property in a manner that was intended by them, or appears to have been intended by them, to separate and finalize their affairs in recognition of their marriage breakdown; the surviving spouse shall be treated as if he or she had predeceased the intestate. Rights of separated common-law partner 3(2) If, at the time of the intestate's death, the intestate and his or her common-law partner were living separate and apart from one another, and one or more of the following conditions is satisfied: (a) where the common-law relationship was registered under section 13.1 of The Vital Statistics Act , the dissolution of the common-law relationship was registered under section 13.2 of The Vital Statistics Act before the death of the intestate; (b) where the common-law relationship was not registered under section 13.1 of The Vital Statistics Act , three years have passed from the day on which the common-law partners began living separate and apart; (c) during the period of separation, one or both of the common-law partners made an application for an accounting or equalization of assets under The Family Property Act and the application was pending or had been dealt with by way of final order at the time of the intestate's death; (d) before the intestate's death, the intestate and his or her common-law partner divided their property in a manner that was intended by them, or appears to have been intended by them, to separate and finalize their affairs in recognition of the breakdown of their common-law relationship; the surviving common-law partner shall be treated as if he or she had predeceased the intestate. Priorities between spouse and common-law partner 3(3) If, at the time of the intestate's death, the intestate had both a spouse and one or more common-law partners, the entitlement of the spouse or common-law partner whose relationship with the intestate was the most recent at the time of the intestate's death has priority over the spouse or common-law partner whose relationship with the intestate was earlier. Section 2 shall be applied as if the intestate only had the spouse or common-law partner who was the most recent, provided that (a) the claim of the most recent spouse or common-law partner under this Act shall not have priority over the claim under Part IV of The Family Property Act of an earlier spouse or common-law partner; and (b) the entitlement set out in subsection 2(3) shall be reduced by the amount due under The Family Property Act to the spouse or common-law partner who was earlier. Exclusion 3(4) A spouse or common-law partner who is excluded from the distribution of the intestate's estate under subsection (1) or (2) shall not be considered for the purpose of subsection (3). S.M. 1991-92, c. 41, s. 12 ; S.M. 2002, c. 48, s. 13 . Share of kindred 4(1) The part of the intestate estate not included in the share of the surviving spouse or common-law partner, or the entire estate if there is no surviving spouse or common-law partner, shall be distributed in accordance with this section. Shares of issue 4(2) If there is surviving issue, the estate goes to the issue of the intestate to be distributed per capita at each generation as provided in section 5. Neither spouse or common-law partner nor issue 4(3) If there is no surviving issue, the estate goes to the parents of the intestate in equal shares or to the survivor of them. No spouse or common-law partner, issue or parents 4(4) If there is no surviving issue or parent, the estate goes to the issue of the parents of the intestate or either of them to be distributed per capita at each generation as provided in section 5. No issue, parent, or issue of parent 4(5) If there is no surviving issue, parent or issue of a parent, but the intestate is survived by one or more grandparents or issue of grandparents, (a) one-half of the estate goes to the paternal grandparents in equal shares or to the survivor of them, but if there is no surviving paternal grandparent, to the issue of the paternal grandparents or either or them to be distributed per capita at each generation as provided in section 5; and (b) one-half of the estate goes to the maternal grandparents or their issue in the same manner as provided in clause (a); but if there is only a surviving grandparent or issue of a grandparent on either the paternal or maternal side, the entire estate goes to the kindred on that side in the same manner as provided in clause (a). No issue, parent or issue of parent, grandparent or issue of grandparent 4(6) If there is no surviving issue, parent, issue of a parent, grandparent or issue of a grandparent but the intestate is survived by one or more great-grandparents or issue of great-grandparents, (a) one-half of the estate goes to the paternal great-grandparents or their issue in two equal shares, as follows: (i) one share to the parents of the paternal grandfather in equal shares or to the survivor of them, but if there is no surviving parent of the paternal grandfather, to the issue of the parents of the paternal grandfather or either of them to be distributed per capita at each generation as provided in section 5, and (ii) one share to the parents of the paternal grandmother or their issue in the same manner as provided in subclause (i), but if there is only a surviving great-grandparent or issue of a great-grandparent on either the paternal grandfather's or paternal grandmother's side, one-half of the estate goes to the kindred on that side in the same manner as provided in subclause (i); and (b) one-half of the estate to the maternal great-grandparents or their issue in the same manner as provided in clause (a); but if there is only a surviving great-grandparent or issue of a great-grandparent on either the paternal or maternal side, the entire estate goes to the kindred on that side in the same manner as provided in clause (a). S.M. 2002, c. 48, s. 13 . Distribution to issue 5(1) When a distribution is to be made to the issue of a person, the estate or the part of the estate which is to be so distributed shall be divided into as many shares as there are (a) surviving successors in the nearest degree of kinship to the intestate which contains any surviving successors; and (b) deceased persons in the same degree who left issue surviving the intestate. Distribution to issue 5(2) Each surviving successor in the nearest degree which contains any surviving successor shall receive one share, and the remainder of the intestate estate, if any, is divided in the same manner as if the successors already allocated a share and their issue had predeceased the intestate. Survival for 15 days 6(1) A person who fails to survive the intestate for 15 days, excluding the day of death of the intestate and of the person, shall be treated as if he or she had predeceased the intestate for purposes of succession under this Act. Survival for 15 days 6(2) If the death of a person who would otherwise be a successor has been established, but it cannot be established that that person survived the intestate for the period required by subsection (1), that person shall be treated as if he or she had failed to survive the intestate for the required period. Application 6(3) This section does not apply where its application would result in a distribution of the intestate estate to the Crown under section 7. No successors 7 If there is no successor under this Act, the intestate estate shall go to the Crown. Advancements 8(1) If a person dies intestate as to all of his or her estate, property which the intestate gave to a prospective successor during the lifetime of the intestate shall be treated as an advancement against that successor's share of the estate if the property was either (a) declared by the intestate orally or in writing at the time the gift was made; or (b) acknowledged orally or in writing by the recipient; to be an advancement. Value of advancement 8(2) Property advanced shall be valued as declared by the intestate, or acknowledged by the recipient, in writing, otherwise it shall be valued as of the time of the advancement. Effect of advancement on recipient's issue 8(3) If the recipient of the property advanced fails to survive the intestate, the property advanced shall not be treated as an advancement against the share of the estate of the recipient's issue unless the declaration or acknowledgement of the advancement so provides. Determination of shares of successor 8(4) Under this section, the shares of the successors shall be determined as if the property advanced were part of the estate available for distribution, and if the value of the property advanced equals or exceeds the share of the estate of the successor who received the advancement, that successor shall be excluded from any share of the estate, but if the value of the property advanced is less than the share of the estate of the successor who received the advancement, that successor shall receive as much of the estate as is required, when added to the value of the property advanced, to give the successor his or her share of the estate. Onus of proof 8(5) Unless the advancement has been declared by the intestate, or acknowledged by the recipient, in writing, the onus of proving that an advancement was made is on the person so asserting. Estate not disposed of by will 9 That part of an estate not disposed of by will shall be distributed in accordance with this Act. Application of Homesteads Act 10 The rights of a surviving spouse or common-law partner under this Act are in addition to the spouse or common-law partner's entitlement to a life estate in the homestead under The Homesteads Act . S.M. 1992, c. 46, s. 57 ; S.M. 2002, c. 48, s. 13 . Application of this Act 11(1) Subject to subsection (2), this Act applies in cases of death occuring on or after the day this Act comes into force. Application re common-law partners 11(2) The provisions of this Act that govern the distribution of an estate to the common-law partner of an intestate apply to the estates of intestates who die on or after the date on which this subsection comes into force. S.M. 2002, c. 48, s. 13 . Repeal 12(1) Subject to subsection (2), The Devolution of Estates Act , R.S.M. 1987, c. D70, is repealed. Deaths before this Act comes into force 12(2) The Devolution of Estates Act , R.S.M. 1987, c. D70, continues in force as if unrepealed in cases of death occurring before this Act comes into force. Reference in C.C.S.M. 13 This Part may be cited as The Intestate Succession Act and may be published in the Continuing Consolidation of the Statutes of Manitoba under that title and may be referred to as Chapter I85 of those Statutes. 14 to 17 NOTE: These sections made up Part 2 of the original Act and contained consequential amendments to other Acts that are now included in those Acts. Coming into force 18 This Act comes into force on a day fixed by proclamation. NOTE: S.M. 1989-90, c. 43, was proclaimed in force July 1, 1990.