Part II: The unfinished ending

Estate administration after separation of spouses.

Separation doesn’t always mean closure. Not individually, and not legally.

Even after years of living separate and apart, if a spouse dies while still legally married, the law can treat the living spouse as a spouse of the Deceased. That treatment can create unexpected and painful complications for executors (aka "Personal Representatives" or "PRs"), children, and new partners trying to navigate estate administration.

POV Law: I spy a spouse

In Alberta, spousal rights don’t end with separation or death. Unless a divorce judgment has been granted, a married spouse remains entitled to:

• inherit under the Will, if named as a beneficiary.

• a share in the estate under the Wills and Succession Act if there’s no Will.

• apply for family maintenance and support (FMS), even if the relationship had long ended.

• serve as personal representative, if named in the Will - sometimes creating deep wounds and practical challenges for everyone involved.

Two spouses, one estate

Where a deceased person was separated but also had a common law partner (adult interdependent partner), the law may recognize both relationships. Each could have potential claims. The married spouse as a legal spouse, and the common law partner under Adult Interdependent Relationship Act provisions.

Personal Representatives are then faced with competing legal interests, uncertain entitlements, and, often, conflict between families.

How this affects PRs and families

If you’re administering an estate for someone who was separated but not yet divorced:

• be cautious about assuming who the rightful beneficiaries are;

• seek legal advice before making distributions;

• review any cohabitation agreements, separation agreements, court filings or the like that may clarify intentions;

• prepare for additional notice obligations and, possibly, delays. The estate administration process of contentious estates is rarely straightforward.

Preventing these situations

The best prevention is to have all spouses proactively plan while alive. Updating a Will, Enduring Power of Attorney and Personal Directive soon after separation can save years of uncertainty and legal costs. For PRs and family members, understanding these rules early can help avoid emotional and financial strain during already difficult times.

Close out: End your story the way you want

Separation doesn’t end the legal story, it just turns the page.

The estate administration of deceased estates often exposes what was left unwritten.

An updated estate plan helps ensure that your story ends the way you want.

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This information is intended to be general only. This isn’t legal advice. Reading or responding to it in any shape or form doesn’t create a solicitor-client relationship. Links are for your ease of reference only and not endorsements.