Providing for Family After Death

People acquire many different obligations in life: to take care of property, to pay debts, to pay taxes. Many of these obligations continue after we die as well. Another set of obligations that continue into the afterlife are those to partners and children.

When administration of a deceased person’s property, liabilities and obligations (their estate) takes place, Alberta’s Family Property Act allows a surviving spouse or adult interdependent partner (AIP) to apply to stop it. This is because the surviving spouse or AIP is still entitled to property of the relationship in the same way they would be entitled if the relationship was ending while the deceased was still alive. This can be important for the surviving spouse or AIP and children if the deceased’s will leaves much of the property to other people.

The Wills and Succession Act(WSA) in Alberta also considers a deceased person’s family members in what it calls “family maintenance and support”. Family members in this context mean the deceased person’s spouse or AIP, minor grandchildren or great-grandchildren whom the deceased looked after as a parent, and children who are: 

• unborn, 

• minors, 

• between 18 and 22 years of age but are a full-time student and not self-reliant, or

• at least 18 years of age but disabled and not self-reliant.

(Note: In Alberta, this does not include adult children that are independent.)

Where the family home of the deceased person and their spouse is not owned by the spouse, the WSA gives the spouse the right to temporarily live there and use the household goods inside for up to 90 days after the deceased died. However, if the deceased’s will does not provide for it, the spouse still may have to make payments regarding things such as the mortgage, property taxes, and utilities. The spouse will also be responsible for any damage they do to the family home or household goods.

Where the deceased’s will does not provide adequately for their family, a Court may order the estate to do so regardless under the WSA. This includes all the family members mentioned earlier. What is adequate depends not just on basic needs, but also how the family lived during the deceased’s life, the size of the estate, what the estate has already provided for, and more. This reflects what the courts have said, which is that the deceased has a moral and legal obligation to provide for the needs of their family, just as they would have in life. The courts will not allow the deceased to somehow contract their way around or otherwise avoid this obligation.