There is a common belief that goes something like this: “If I die without a will, my spouse gets everything anyway, so why bother?” It is one of the most confidently held ideas in estate planning, and one of the most often wrong. Whether your spouse inherits everything depends on facts you may not have thought about, and the difference between the two outcomes can easily run into six figures.
Alberta has a statute that decides what happens to your property when you die without a valid will. It is not flexible. It applies a fixed formula, and that formula produces winners and losers depending on your family structure at the date of death.
What Intestacy Actually Means
If you die without a will, or if you leave a will that fails (improperly signed, revoked, or no longer capable of distributing your estate), you are said to have died intestate. Part 3 of the Wills and Succession Act, SA 2010, c W-12.2 takes over and directs how your property is distributed. Sections 58 through 71 contain the rules.
Your estate goes to your family in a statutorily fixed order. But the order shifts depending on whether you have a surviving spouse, a surviving adult interdependent partner, descendants from that relationship, descendants from outside it, or no immediate family at all. Each combination produces a different result.
When the Spouse Gets Everything (and When They Do Not)
This is where the misconception lives. Under section 61 of the Act, there are two scenarios, and they produce very different outcomes.
Scenario one: all your descendants are also descendants of your surviving spouse or adult interdependent partner. Your spouse or partner inherits the entire estate. Your children receive nothing directly. The rule assumes a surviving parent will provide for the shared children and eventually pass the estate on through their own will or intestacy. If your family fits this picture, the misconception is accurate.
Scenario two: you have at least one descendant who is not also a descendant of your surviving spouse or partner. This is where things change sharply. Your spouse or partner receives a preferential share equal to the greater of $150,000 or one-half of the net value of the estate. Everything beyond that share is divided among your descendants.
The second scenario is where the six-figure swings happen. Consider a $1.2 million estate where you have a surviving spouse and one child from a prior relationship. Scenario one would send the whole thing to your spouse. Scenario two sends $600,000 to your spouse and $600,000 to your child.
Blended families are common in Alberta. If you have a child from before your current marriage, or if your partner does, the intestacy rules will not distribute your estate the way you assume. This is the single most important reason to have a will if your family is not strictly nuclear.
What If There Are Both a Spouse and an Adult Interdependent Partner?
This happens more often than you might expect. Under Alberta’s Adult Interdependent Relationships Act, SA 2002, c A-4.5, you can be in an adult interdependent partnership while still legally married to someone else, as long as you and your married spouse have been living separate and apart. Someone who separates without divorcing and enters a new committed relationship may die with both a legal spouse and an adult interdependent partner at the same time.
Section 62 of the Wills and Succession Act covers this. The preferential share is split equally between the spouse and the adult interdependent partner, and the rest of the estate moves down the line as usual. If there are no descendants, the estate is divided equally: one-half to the spouse, one-half to the adult interdependent partner.
If this describes your situation and you do not have a will, you are leaving a former spouse, perhaps one you have not spoken to in years, with a statutory claim to half your estate. A will can address this directly. The intestacy rules cannot.
Section 63 does disinherit a spouse who has been separated from the deceased for at least two years, or where there is a declaration of irreconcilability, a court order, or an agreement finalizing the marital affairs. If you have been separated for less than two years and nothing formal is in place, your spouse remains a beneficiary.
No Spouse, No AIP, No Kids: What Then?
If you die without a spouse, adult interdependent partner, or descendants, the estate moves outward along family lines. Sections 66 and 67 use a parentelic system that works in steps.
First, your estate goes to your parents. If one survives, they take the whole thing. If both are gone, the estate passes to your siblings, and if any sibling predeceased you leaving children, those nieces and nephews take their parent’s share by representation.
If there are no surviving parents, siblings, nieces, or nephews, the estate splits in two: one-half to the maternal side and one-half to the paternal side, going first to surviving grandparents and then to their descendants (your aunts, uncles, and cousins). The Act caps inheritance at the fourth degree of relationship. If one side has no qualifying relatives, the other side takes the whole estate. If there are none on either side, the process repeats for the great-grandparent line.
If no one qualifies at any step, the estate escheats to the Crown under the Unclaimed Personal Property and Vested Property Act, SA 2007, c U-1.5. If you have distant relatives you would rather not enrich, or a charity, friend, or cause you would prefer to benefit, you need a will.
Who Gets to Administer the Estate
Separate from who inherits is the question of who administers the estate. Without a will, this person is called an administrator, and the court issues a grant of administration rather than a grant of probate.
The Estate Administration Act, SA 2014, c E-12.5 sets the order of priority. In descending order: surviving spouse or adult interdependent partner, child of the deceased, grandchild, other descendant, parent, sibling, child of a sibling (if that person is a beneficiary under the intestacy), and then other next of kin who are beneficiaries under the Wills and Succession Act. The person with highest priority can nominate someone else to act.
In a blended family, the person with first priority to apply is often the same person whose interests diverge most sharply from your children’s. That tension surfaces quickly in contested estates.
What an Intestacy Cannot Do
Even where the statutory distribution produces roughly the outcome you would have chosen, an intestacy can never do certain things:
- Name a guardian for your minor children. Only a will (or a separate appointment under the Family Law Act) can do that. Without one, guardianship is resolved in court.
- Leave anything to a stepchild. Stepchildren are not descendants under the Act unless legally adopted.
- Make charitable gifts. If there is a cause you care about, the intestacy rules have no mechanism to honour it.
- Leave specific items to specific people. A family heirloom, a vehicle, a particular piece of property cannot be directed through intestacy.
- State your wishes about funeral arrangements, cremation, or burial.
- Create a trust for a minor or vulnerable beneficiary. Funds inherited by a minor are held by the Public Trustee until age 18, with no structure to release them thoughtfully as the child matures.
If you do not have a will, or if your last will was made before a major life change, contact my office to discuss a proper estate plan for your situation. You can also read about my wills and estates services, or the companion piece on why every Albertan needs a personal directive.