Research Paper Number

31/2015

View the research paper on SSRN here.

Document Type

Article

Publication Date

2015

Keywords

Preferential Share, Succession Law Reform Act, Widows, Intestacy

Abstract

Ontario’s current method for trying to ensure the fair distribution of an intestate’s estate, or the estate of an individual without a valid Last Will and Testament, is outlined in the Succession Law Reform Act. Specifically, section 45(1) outlines the foundational concept of a “preferential share,” which entitles the surviving spouse to a prescribed financial interest in the estate which is prioritized above all other heirs.

The concept of a preferential share stands in sharp contrast with historical English common law methods of devolving intestate estates in which legal entitlements were heavily influenced by an individual’s gender and marital status. In light of the historical influence of gender and marital status on intestacy legislation, this paper investigates the origins and development of the preferential share provision. This paper uses an analytical framework emphasizing the historically gendered experiences of widows and widowers, and how their gender informed the nature of their legal interests under intestacy. In addition, this essay frames its analysis within historical commentary that demonstrates a sharp conceptual dichotomy between the “good wife and deserving widow” or the “bad wife and undeserving widow,” and how such categorization impacted perceptions of what a fair and reasonable devolution entailed.

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