Simultaneous Death of Spouses in Alberta: What Happens to their Estates?

Oct 22

8 min read

Many married couples plan for one spouse to inherit when the other dies. But what happens if both spouses die at the same time, or no one can establish who died first?

Severely wrecked red car on a tow bed, with shattered windshield, crumpled front end, and bent door in a wooded outdoor area

The answer depends on whether both spouses have wills, only one has a will, or neither has a will. For blended families, it also matters whose children are legally entitled to inherit from each estate.

In Alberta, the starting point is that each spouse is treated as having died before the other when determining their respective property rights. This generally prevents property from passing from one spouse to the other merely because of an assumed order of death. Each estate is then considered separately.

If you would like to review or update your Will, contact Wiebe Law to schedule a consultation.

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Alberta’s rule for the simultaneous death of spouses

Under section 5(1) of the Wills and Succession Act, SA 2010, c W-12.2, when two or more people die at the same time, or in circumstances that make it uncertain who survived whom, each person’s property rights are determined as though that person had died before the others.

For married spouses, the practical effect is:

When dealing with the first spouse’s estate, the other spouse is treated as having died first.
When dealing with the other spouse’s estate, the first spouse is also treated as having died first.

This is a legal rule for deciding property rights, not a finding that both people actually died first. The law does not simply assume that the younger spouse survived the older spouse.

There are exceptions. A court interpreting a will or another instrument may find a contrary intention, and insurance legislation or another statutory provision may require a different result.

Simultaneous death is different from dying a short time apart

Dying in the same accident does not necessarily mean the rule on the simultaneous death of spouses in Alberta applies. If evidence establishes that one spouse survived the other, the order is not uncertain—even if the difference was brief.

That is where a survivorship clause in a will becomes particularly important. A will may require a beneficiary to survive the will-maker for a stated period before receiving an inheritance. If the beneficiary dies during that period, the will’s alternate arrangements may apply.

Do not assume every will uses the same survival period. The actual wording must be reviewed. Also, a survival condition in a will does not necessarily control jointly owned property or assets payable under separate beneficiary designations.

Scenario 1: Both spouses have wills

If both spouses have valid wills, each will is reviewed separately, together with the simultaneous-death rule.

A gift to the other spouse will generally be dealt with on the basis that the spouse died first, unless the will or another applicable rule produces a different result. The next question is: Who inherits instead?

The answer may be found in:

An alternate-beneficiary provision;
A clause dealing specifically with simultaneous death or a common disaster;
A survivorship condition;
The clause distributing the balance of the estate, often called the residue; or
The Act’s rules for gifts that cannot take effect.

Example: Each will names the spouse, then the children

Suppose each spouse’s will leaves the estate to the other spouse, but provides that if the spouse does not survive, the estate goes to specified children.

If the spouses die simultaneously and the default statutory rule applies, each estate follows its own alternate gift. If one will names only that spouse’s children and the other names a different group, the estates may go to different beneficiaries. If both wills intentionally name all children in a blended family, the result may be different.

Having wills does not automatically mean both estates go to the same people. The wording of each will determines the plan.

What if the will has no effective backup gift?

Under section 32 of the Wills and Succession Act, a gift that fails because the beneficiary died before the will-maker may pass to an alternate beneficiary, to certain descendants where applicable, or to surviving residuary beneficiaries. If no applicable route disposes of it, the property may pass under intestacy rules.

A spouse is not a descendant of the will-maker. The deceased spouse’s children do not automatically receive the spouse’s failed gift simply because they are that spouse’s children.

This is why a will that says only “everything to my spouse” can leave an important gap.

Scenario 2: One spouse has a will and the other does not

When only one spouse has a will, one estate follows the will and the other follows the intestacy rules. The will does not cover both spouses.

For the spouse with a will, the personal representative reviews the will’s gifts, survival requirements and backup beneficiaries. For the spouse without a will, Alberta’s statutory inheritance rules determine who receives the intestate estate.

If the simultaneous-death rule applies, neither spouse is treated as a surviving spouse for the default inheritance analysis. Under sections 65 and 66 of the Wills and Succession Act, an intestate estate with no surviving spouse or adult interdependent partner passes to the deceased’s descendants. If there are no descendants, other family-priority rules apply.

Example: One spouse plans for all children, but the other does not

Imagine a blended family where each spouse has children from an earlier relationship. One spouse makes a will naming both sets of children as alternate beneficiaries. The other spouse never makes a will.

If they die simultaneously, the spouse with the will may provide for both sets of children as the will directs. The spouse without a will generally leaves their intestate estate to their own descendants—not automatically to their stepchildren.

One spouse’s estate plan cannot substitute for the other spouse’s will.

Scenario 3: Neither spouse has a will—a blended family

Consider this hypothetical family:

Alex has two biological children from an earlier relationship.
Jordan has one biological child from an earlier relationship.
Alex and Jordan have no children together.
Neither spouse has adopted the other spouse’s children.
All three children survive Alex and Jordan.
Both spouses die simultaneously, or the order of death cannot be determined.

Assuming the default Alberta rules apply, Alex’s and Jordan’s estates are not combined and divided equally among the three children.

Instead:

Alex’s net intestate estate goes to Alex’s two children in equal shares.
Jordan’s net intestate estate goes to Jordan’s child.

Alex’s children do not inherit from Jordan merely because Jordan was their stepparent. Jordan’s child does not inherit from Alex merely because Alex was their stepparent. Adoption or another legally recognized parent-child relationship can change the analysis, but marriage to a child’s parent does not, by itself, make that child a descendant for intestacy purposes.

The result follows the separate-estate approach in section 5 and the distribution rules in sections 65 and 66 of the Wills and Succession Act.

What if a child has already died?

The descendants’ distribution rule is per stirpes, meaning distribution follows family branches. If a child died before the parent but left descendants who survive the parent, that child’s branch can receive the share that would otherwise have gone to the child.

The inheritance is therefore not necessarily divided equally among everyone in the next generation.

Why the size of each estate matters

The two sets of children may receive very different inheritances if Alex and Jordan owned different amounts of property.

Intestacy does not equalize those estates or ensure that every child in the blended family receives the same amount. It follows legal family relationships and the property belonging to each estate. The distributable amount also takes account of debts and estate expenses; these examples assume no competing claims or orders alter the distribution.

What happens to the jointly owned home?

Joint ownership needs its own analysis. Couples should not assume that a jointly owned home will all pass into one spouse’s estate when the order of death is uncertain.

Under section 5(2) of the Wills and Succession Act, where all owners of property held jointly with a right of survivorship die simultaneously or in an uncertain order, they are generally deemed to have held the property as tenants in common. A court may find a contrary intention when interpreting a will or another instrument.

In practical terms, each owner’s share is dealt with through that owner’s estate rather than the entire property passing to one assumed survivor.

For the Alex and Jordan example, if they held equal beneficial interests in their home, each spouse’s share would ordinarily be dealt with in their own estate. Alex’s share would follow Alex’s inheritance rules, while Jordan’s share would follow Jordan’s. Ownership interests, mortgages and any relevant agreements must still be checked.

Life insurance and beneficiary designations require separate review

Not every asset is distributed under a will or the intestacy rules.

Life insurance, registered accounts and pension benefits may be governed by beneficiary designations, plan terms and specific legislation. Section 5 expressly recognizes exceptions for certain insurance provisions and other statutory rules.

Do not assume the estate example above also determines who receives every insurance policy or registered account.Those assets need a separate review, including what happens if the primary beneficiary dies at the same time as the owner or insured person.

What if one spouse definitely survives the other?

If the order of death is known, the outcome can be materially different. Property may pass to the surviving spouse, depending on the asset and any survival conditions. It may then become part of that spouse’s estate when they die.

For a blended family, Alberta’s intestacy rules also distinguish between descendants who are all descendants of the surviving spouse and descendants who are not. The surviving spouse’s entitlement under section 61 of the Wills and Succession Act can therefore affect what ultimately passes into the survivor’s estate.

The important point is that “both died in the same accident” and “neither legally survived the other” are not necessarily the same thing.

How coordinated estate planning can protect a blended family

A useful estate plan addresses more than the first spouse’s death. It also addresses what happens if neither spouse survives long enough to inherit.

Consider reviewing:

Both spouses’ wills, not just one;
Survivorship and common-disaster provisions;
Alternate beneficiaries, including whether stepchildren are expressly included;
Alternate executors, if the spouses name each other;
Ownership of the home and other joint assets;
Insurance and registered-account beneficiary designations; and
Trust arrangements for minor children or other beneficiaries who need ongoing support.

There is no single correct distribution for every blended family. Some couples want each estate to benefit only that spouse’s children. Others want all children to share, or want a different arrangement. Clear, coordinated planning can put those wishes into effect instead of leaving the result to default rules.

Frequently asked questions

Does Alberta assume the younger spouse died last?

No. Under the current default rule, simultaneous or uncertain-order deaths are handled by treating each person as having predeceased the others for their respective property rights, subject to the statutory exceptions.

Do stepchildren automatically inherit if both spouses die without wills?

No. Being a stepchild alone does not create an automatic entitlement as a descendant under the intestacy rules. In the blended-family example above, each spouse’s own children inherit that parent’s net intestate estate.

Does one spouse’s will apply to both estates?

No. Each spouse needs their own will. A will governs the property it legally disposes of, not the other spouse’s estate.

Can an estate still be partly intestate even if there is a will?

Yes. If a will does not effectively dispose of some property—for example, because a gift fails and no effective alternate provision applies—that property may be distributed under intestacy rules.

Plan for both deaths—not just the first

Simultaneous death is a difficult possibility to consider, but planning for it can spare families uncertainty. In a blended family, the consequences of incomplete planning can be especially significant.

Contact our office to review your wills, survivorship provisions and blended-family estate plan. A coordinated plan can help ensure that the people you intend to benefit are provided for, even if both spouses die at the same time.