Rights of the Separated Spouse
In some situations, even though spouses or common-law partners are separated, in the absence of a Will, the spouse or common-law partner may be entitled to the entire estate. Section 3 of The Intestate Succession Act provides as follows:
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:
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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;
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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.’