Part 2 of 2: Inheritance, Claims, and the Traps in the Timing

In Part 1 we dealt with the threshold question: who is an adult interdependent partner (“AIP”) under the Adult Interdependent Relationships Act, SA 2002, c A-4.5 (“AIRA”), and when that status begins and ends. Three points from that post carry the weight of this one:

You can acquire the status without signing anything — three years of living together in a relationship of interdependence is enough (AIRA s 3(1)(a)(i)), and it need not be a romantic relationship.
A married but separated person can have an AIP while remaining legally married (AIRA s 5(2)) — so two people can have claims at once.
Separation does not end the status. Absent a written agreement or a declaration of irreconcilability, your former partner remains your AIP for one year and a day (AIRA s 10(1)(b)).

Now the consequences. Alberta’s succession legislation treats a surviving AIP, in most respects, exactly as it treats a surviving spouse.

If you die without a will

Part 3 of the Wills and Succession Act, SA 2010, c W-12.2 (“WSA”) governs.

Who survives	Result
Spouse or AIP, no descendants	Entire intestate estate to the survivor — s 60
Spouse or AIP, and all descendants are also descendants of the survivor	Entire intestate estate to the survivor — s 61(1)(a)
Spouse or AIP, and any descendant is not a descendant of the survivor	Survivor takes the greater of the prescribed amount and 50% of the net value; descendants take the remainder — s 61(1)(b)
Both a spouse and an AIP, with descendants	The s 61(1)(b)(i) preferential share is split 50/50 between spouse and AIP; balance to descendants — s 62(a)
Both a spouse and an AIP, no descendants	Estate split 50/50 between spouse and AIP — s 62(b)

The prescribed amount is $150,000 (Preferential Share (Intestate Estates) Regulation, Alta Reg 217/2011; WSA s 61(2)). “Net value” is the estate wherever situated, after debts — including debts arising from an order or agreement under the Family Property Act — charges, and funeral and administration expenses (s 58(1)(b)).

Two further provisions:

Section 63 deems a surviving spouse to have predeceased where the couple had been living separate and apart for more than two years at death, or were parties to a declaration of irreconcilability, or were parties to an order or agreement in respect of property or other marital or family issues intended to separate and finalize their affairs in recognition of the marital break-up. It does not apply where a subsisting reconciliation existed at death (s 63(2)). Section 63 also governs priority for a grant under the Estate Administration Act.
Section 64 prevents double recovery: a person taking as an AIP is not entitled to any further share in another capacity. This is the provision that bites where the AIP is also a relative — a sibling who signed an agreement, for example, takes as an AIP and not also as kin.

The asymmetry nobody expects

A separated spouse is cut out only after two years (WSA s 63). A separated partner ceases to be an AIP after one year (AIRA s 10(1)(b)) — and then takes nothing under Part 3, which benefits an AIP and not a former AIP.

Two statutes, two clocks, and an estate that can turn on which side of a date the death falls.

If you do have a will

Entering the relationship does not revoke it

WSA s 23(2) abolished revocation by marriage (s 23(2)(a)) and by entering into an adult interdependent relationship (s 23(2)(b)). Your twenty-year-old will leaving everything to a sibling survives your new relationship entirely intact.

This is the opposite of what most clients assume — and the opposite of the old Wills Act rule. A new relationship is not a reason your will is fine. It is a reason to review it.

Ending the relationship revokes the gift

WSA s 25(1): where, after making a will, the testator’s marriage is terminated by divorce judgment or found void, or the testator ceases to be the adult interdependent partner of an individual, then unless the Court finds a contrary intention in interpreting the will, any provision that

(a) gives that person a beneficial interest in property (personally or as a class member),
(b) gives them a general or special power of appointment, or
(c) appoints them executor, trustee, or guardian of a child under the Family Law Act

is deemed revoked, and the will is interpreted as if they had predeceased the testator.

The one-year window

Read s 25 with AIRA s 10 and the problem is plain. Your former partner does not lose the gift on the day you separate. They lose it on the day they become a former AIP — which, absent a written agreement or a declaration of irreconcilability, is one year and one day later.

Separate in January. Die in September. Your ex takes under your will, and is still your executor.

A written separation agreement under AIRA s 10(1)(a) triggers former-partner status at once. A new will does the job directly. Both take an afternoon. The one-year default does not care that you meant to get around to it.

Section 25 does not touch beneficiary designations

RRSPs, RRIFs, TFSAs, pensions, and life insurance pass by designation, outside the will. Neither divorce nor the end of an adult interdependent relationship disturbs them.

Updating the will and forgetting the designations is the most common — and among the most expensive — errors in this area. For many Albertans the registered plans and the policy are the majority of the estate. A perfect will sitting beside a stale designation is not an estate plan.

Family maintenance and support claims

An AIP is a “family member” under WSA s 72(b) and may apply under s 88 for adequate provision out of the estate where the will — or the intestacy — does not make adequate provision for their proper maintenance and support.

The full list of family members with standing:

a spouse;
an adult interdependent partner;
a minor child;
an adult child unable to earn a livelihood by reason of mental or physical disability (s 72(b)(iv));
an adult child aged 18 to under 22 in full-time attendance at school, whom the deceased was supporting at death; and
a minor grandchild or great-grandchild to whom the deceased stood in the place of a parent.

The application must be brought within six months after the grant of probate or administration is issued (s 89(1)). The Court may permit a late application, but only against property not yet distributed (s 89(2)).

In assessing a claim, the Court considers all the circumstances — including the nature and length of the relationship, the deceased’s reasons for the disposition (including any signed written reasons), any relevant agreements or waivers, and any property or benefit the applicant receives under other legislation such as the Family Property Act, the Dower Act, or other parts of the WSA.

You cannot draft your way out of this. Testamentary freedom in Alberta is real, and the WSA is built on it — but it is expressly subject to the deceased’s legal and family support obligations. If you intend to leave your partner less than they might expect, the answer is not silence. It is a documented, defensible plan, and ideally a signed statement of reasons.

The 90-day right to occupy your home

Under WSA s 75(1), a surviving spouse or AIP who is not registered on title but was ordinarily occupying the family home at the time of death is entitled to possession for 90 days from the date of death.

It applies whether the home is owned outright by the deceased, co-owned with a third party, or rented — and it operates despite the Residential Tenancies Act, the Mobile Home Sites Tenancies Act, and the Condominium Property Act (s 75(5)).

The estate pays during the period of temporary possession (s 79(1)): rent or similar charges, mortgage payments, payments under any lease or loan for household goods, insurance on the home and goods, property taxes, reasonable utilities, and reasonable maintenance and repair. Those costs are generally treated as an advance against the survivor’s share and may be deducted from it (s 79(3)).

The survivor must keep the home and goods in reasonable repair, having regard to their condition at death (s 80), and must permit the personal representative reasonable access (s 81). The right terminates if the survivor ceases to occupy the home as their ordinary residence (s 75(6)) or fails to maintain it (s 75(7)).

This one can be waived. Under s 78(1), spouses or AIPs may enter a written agreement waiving a right that s 75 or s 76 would otherwise provide on the death of the other — and the agreement survives death and binds the estate (s 78(2)). This is one of the few places in this area where drafting solves the problem outright.

The scenario to picture: your partner lives in a condo you own jointly with your mother. You die. Your partner has a statutory right to stay for 90 days, and your estate pays the mortgage, taxes, insurance, and utilities while they do.

Family property claims — and the gate that stops most of them

Since 1 January 2020, the Family Property Act, RSA 2000, c F-4.7 (“FPA”) extends property-division rules to adult interdependent partners.

On death, FPA ss 11–15 provide that a surviving spouse or surviving AIP may commence or continue a family property application, with real consequences for administration:

a six-month limitation from the date of issue of the grant (s 11(4));
no distribution by the personal representative during that six months without the survivor’s consent or a court order — on pain of personal liability to the survivor for any resulting loss (s 13);
a power in the Court to suspend administration pending the application (s 12);
a direction that the personal representative hold the estate subject to any order made, and not distribute otherwise than in accordance with it (s 14); and
property transferred under a family property order deemed never to have formed part of the estate as against beneficiaries and other claimants (s 15).

The Court must also take into account any benefit the survivor received as a result of the death (s 11(3)).

But: s 11(2) is a gate

Section 11(2) provides that a family property order may be made on a survivor’s application only if an application could have been commenced immediately before the death.

For AIPs, the grounds are in s 5.1(1): an order may only be made (a) if they have become former AIPs, (b) if they are living separate and apart at the time of the application and the other partner has transferred or intends to transfer substantial property to a non-bona fide purchaser, or has made or intends to make a substantial gift, with intent to defeat a claim, or (c) if they are living separate and apart and one partner is dissipating property to the other’s detriment.

An intact, subsisting relationship satisfies none of these. In practical terms, the surviving partner of an intact relationship generally cannot bring an FPA claim against the estate. The same logic applies to a surviving spouse under s 5(1).

Why: the section that was never proclaimed

This is not an oversight. WSA s 117 would have amended the property-division legislation to let a surviving spouse claim a share of family property on death — in addition to whatever the will gave them. The estates and family bar objected that it would upend carefully built plans, particularly in blended families and where provision was made outside the will. Proclamation was delayed, and s 117 was repealed in 2013 without ever coming into force.

The result: a surviving spouse or AIP who was not separated at death is left with the will, the intestacy rules, and a s 88 claim — not a property claim.

(This conclusion follows from reading FPA s 11(2) with s 5.1(1) rather than from any single express provision. It appears to be the settled understanding in Alberta practice, but it is a construction, and the analysis should be run on the specific facts and in consultation with a family law practicioner.)

Dower: spouses only

The Dower Act, RSA 2000, c D-15, gives a non-owner spouse a life estate in the homestead and the right to prevent its disposition by withholding consent. It does not apply to adult interdependent partners.

WSA s 2 provides that where the Dower Act conflicts with WSA Part 2 or Part 3 respecting a spouse’s rights in property after the other spouse’s death, the Dower Act prevails. The two statutes operate to secure different interests, and a surviving spouse can hold both a dower life estate and an intestate share.

The Alberta Law Reform Institute has concluded the protection remains necessary, has recommended replacing the Dower Act with modern legislation, and has recommended extending it to adult interdependent partners. As of the date of this article, that has not been enacted.

So: a surviving spouse who is not on title may have a life estate in the home. A surviving AIP who is not on title has 90 days (WSA s 75). That is the single largest remaining gap between the two statuses on death — and it is a gap that a joint tenancy, a life interest in a will, or a well-drafted trust can close deliberately.

Who administers the estate

Under the Estate Administration Act, SA 2014, c E-12.5:

Section 13(1)(b)(i) places the surviving spouse or adult interdependent partner at the top of the priority list for a grant of administration.
Section 13(2)(b): where both a spouse and an AIP apply, preference goes — unless the Court rules otherwise on application — to whichever of them lived with the deceased immediately or most recently before the death.
Section 13(3): where two or more persons of equal priority by degree of kinship apply, the Court may grant authority as it considers appropriate.
The Court retains a broad discretion to depart from the statutory priorities: Egal v Shafat, 2020 ABCA 50.
Section 11 requires the applicant to serve notice of Part 5 rights on the spouse and on the adult interdependent partner where they are not the sole beneficiary. The Court may dispense with the notice requirement where satisfied that the spouse (s 11(3)) or the AIP (s 11(3.1)) has no right to make an FPA claim against the estate.

Read s 13(2)(b) again and picture it in practice: your separated spouse and your current partner, in court, arguing over which of them lived with you most recently. That is a real proceeding, on real facts, funded by your estate.

Where this actually bites

The blended family. Children from a first marriage. A partner of four years. No will. Your partner takes the greater of $150,000 or half the net estate; your children divide the rest (s 61(1)(b)). On a $280,000 estate, your children split $130,000. Almost certainly not what you intended — and exactly what the statute says.

Separated but not divorced. You separated from your spouse six years ago and never filed. You have lived with a new partner for five years. Your spouse is deemed to have predeceased you (s 63); your partner takes as your AIP. Now change two numbers: separated for eighteen months, new partner for three years and one month. Both are in, splitting the preferential share under s 62 — and both may apply for the grant under EAA s 13(2)(b). The difference is a matter of months.

The household that never thought of itself as a couple. Two siblings who signed an AIP agreement years ago to share a benefit. Two friends who have shared a home for a decade. The first is live until an AIRA s 10 event occurs; the second can, on the right facts, satisfy s 3(1)(a)(i) — with intestacy, s 88, and s 75 consequences neither party ever contemplated.

The one-year window. You separate. You mean to update your will. You die eight months later. Your ex takes, and probates your estate.

The perfect will and the stale designation. Everything to the children in the will; the ex still named on the RRSP and the policy. Section 25 does not reach them.

What to do about it

Make a will. The intestacy rules are a default written for a family that may not be yours.
Decide the status question deliberately. Want it? Sign an adult interdependent partner agreement in the prescribed form and get certainty from day one (AIRA s 7(1)). Don’t want it? You cannot contract out of AIRA status itself — but you can contract out of a great deal of what flows from it.
Use a cohabitation or partner agreement. FPA property rights can be addressed by agreement, subject to the Act’s formal execution requirements. WSA s 75 and s 76 rights can be waived under s 78, and the waiver binds the estate.
Update beneficiary designations every time you update the will. Different rules, different statute, not caught by s 25.
If you separate, document it the same week. A written agreement evidencing an intention to live separate and apart without possibility of reconciliation triggers AIRA s 10(1)(a) immediately, instead of waiting out the year. Then make a new will.
If you are separated and not divorced, finish it. A live marriage plus a live adult interdependent relationship is the s 62 / s 13(2)(b) scenario. It is litigation with a date on it.
If you intend to provide unequally, write down why. A s 88 claim is coming from a family member you left out. The Court will look at your reasons — if you gave any.

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