Know the law, should your spouse pre-decease you.
In Canada, reserve lands are governed by federal laws.
However, most laws designed to deal with the division of family property upon death are provincial. This means that the provincial laws that are designed to protect spouses do not apply if the spouses lived in reserve lands. As such, for a long time, on-reserve couples were left without protection.
The Federal Government introduced the Family Homes on Reserves and Matrimonial Interests or Rights Act (the “Act”) to fill this gap.
The Act allows for First Nations* to create their own laws about family homes. The Act also provides a set of rules that will apply in the meantime, until a First Nation establishes its own laws.
The Act applies to married couples or common-law partners living on-reserve, where at least one partner is a First Nation member or status Indian.
In the event of death, the rules provide protection for the surviving spouse or common-law partner, as follows:
- The survivor has an automatic right to live in the family home for 180 days after the death of their spouse or common-law partner (section 14 of the Act).
- The survivor can apply to the Courts to stay in the spousal home beyond the 180-day period. The Court will consider various factors when deciding whether to allow for a longer stay, such as the best interests of any children living in the family home (section 21 of the Act).
- The survivor can apply for a division of the value of the deceased’s interest in or right to the family home, among other rights (section 34 of the Act).
The survivor’s rights may also be affected by a deceased spouse’s Will, or by other estate rules. Since every situation is unique, it is important to discuss your specific circumstances with a lawyer.
If you have questions contact Leah Card or a member of our Wills & Estates Team – we’re here to help.
*”First Nations” is the terminology that is used in the Statute.